GREEN v. THE STATE OF NEW YORK, #2004-029-367, Claim No. 105748
NADENE M. GREEN
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
STEPHEN J. MIGNANO
Nadene M. Green, Pro Se
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Elyse J. Angelico, Assistant Attorney General
March 25, 2004
See also (multicaptioned
This claim, by a
inmate, alleges that claimant was assaulted by a Correction
Officer (hereinafter C.O.) at Bedford Hills Correctional Facility (hereinafter
Bedford Hills) on November 15, 2001. The claim also asserts that claimant
received improper medical care at the Bedford Hills medical unit for injuries
sustained in the alleged assault. Trial of this claim was held on December 12,
2003 at Bedford Hills and was fully submitted after submission of post-trial
Claimant testified that on November 15, 2001 she was sitting in her assigned
cell doing legal work when C.O. Arndt suddenly opened her cell door and told her
to step out of the cell. In response to her inquiry, the C.O. advised her that
he was performing a cell search, again ordered her to exit the cell and to stand
against the wall directly across from her cell. Claimant stated she complied
with the C.O.'s instructions. She claims he was reading her legal work and she
protested that he should not do so. After asking C.O. Arndt if she could see a
Sergeant, claimant walked down the hall to the Officer's Station to C.O. Blaggat
and asked him to call the Sergeant because she wanted to question the cell
search and to report C.O. Arndt for reading her legal work. C.O. Blaggat
refused to call the Sergeant and told claimant to go back and stand where C.O.
Arndt told her to.
When claimant returned to the area outside her cell she noticed that C.O. Arndt
had removed an extra blanket from her bed. Claimant advised the C.O. that the
Superintendent had authorized the extra blanket because of a heating problem.
The C.O. disagreed with her and told her that she was only allowed one blanket.
Claimant testified that C.O. Arndt then threw a photograph of her brother onto
the floor. She walked into the cell, picked up the picture and turned to walk
back to the wall. Claimant stated that when she turned around the C.O. was
right there on top of her with his hands up as if ready to strike her, which
claimant asserts he did. Claimant stated she put her hands up to block the
punch and C.O. Arndt then put her in a headlock and pulled her toward the wall
and put her down on the floor.
Claimant stated that two other C.O.s, possibly Sergeants, arrived but did not
intervene. She stated she heard C.O. Arndt tell the two C.O.s to cuff her.
Claimant felt one of the C.O.s twist her arms up toward the back of her head
which caused her a great deal of pain. Claimant stated she was transported to
the facility medical unit and complained of injuries to her neck, wrist, arms
and face. After being treated, claimant was taken to the Special Housing Unit
Claimant stated that she did not threaten C.O. Arndt and only protected herself
from his use of force. As a result of this incident, claimant received a
Misbehavior Report (Exhibit 1) but the charges were dismissed because the
Disciplinary Hearing was not commenced in a timely manner (see Hearing Packet,
The State called C.O. Allen as a witness. She has been employed by the New
York State Department of Correctional Services (hereinafter DOCS) for 20 years
as a C.O. and is currently assigned to Bedford Hills. On November 15, 2001,
C.O. Allen was on duty in the corridor of claimant's housing unit when C.O.
Arndt searched claimant's cell.
C.O. Allen testified that she heard claimant being given a direct order to stay
out of her cell and then saw claimant enter the cell in defiance of the order
because she wanted her photograph back. C.O. Allen stated that claimant was
angry at her and believed it was her [C.O. Allen's] fault that her cell was
being searched. She stated that after claimant yelled at her, claimant entered
her cell and took a punch at C.O. Arndt. C.O. Allen saw C.O. Arndt's hat come
off of his head and then saw C.O. Arndt put his hands on claimant's shoulders
and guide her slowly to the floor.
C.O. Allen stated that Sergeant Blaise and C.O. Meyers arrived at the scene in
response to a "red alert", which means an officer is having trouble and needs
assistance. She stated C.O. Arndt grabbed claimant's arms and C.O. Meyers
handcuffed claimant. C.O. Allen stated she did not see C.O. Arndt strike
claimant. She observed him trying to defend himself and avoid a punch from
Exhibit B is a copy of a memorandum dated November 15, 2001 from C.O. Allen to
Sergeant Blaise regarding the incident. In that memorandum, C.O. Allen reported
that claimant punched C.O. Arndt in the right shoulder with her right fist and
then swung her left fist at his head, knocking his hat off (see Exhibit
C.O. Arndt also testified at trial. He has been employed by DOCS since August,
1997, is currently assigned to Bedford Hills and was working there on November
15, 2001 as Second Officer on claimant's housing unit. He stated he was ordered
by a Sergeant to conduct a cell search of claimant's cell to look for specific
legal books and materials that were missing from the facility law library.
C.O. Arndt testified he went to claimant's cell and directed her to step
outside so he could search it. Claimant stepped out of the cell and he began to
search through legal documents in search of the specific books. During his
search, he noticed a photograph inside the cell which he believed was a photo of
Inmate White and Inmate White's brother. Since a photograph of another inmate
is considered contraband, C.O. Arndt placed the picture aside with an extra
blanket, which is also considered contraband.
C.O. Arndt recalled that during the search claimant complained when he was
looking through her legal papers. He also heard claimant say she wanted to see
a Sergeant; however, he continued the search because once a search has begun it
cannot be terminated until completed. He also observed claimant start to enter
the cell several times before she finally did enter in violation of his order.
He stated that claimant entered the cell when he placed the photograph on the
extra blanket. She attempted to punch him in the right shoulder with her right
hand. He observed that she was highly agitated and yelling. She told him that
the picture was of her brother. He stated that after claimant attempted to
punch him, he put both his hands on her shoulders to direct her out of the cell
but claimant resisted his efforts and was given a direct order to stop
resisting. When he got claimant out into the corridor, she again swung at him
striking his hat and knocking it off of his head. C.O. Arndt stated that he
then wrapped his hands around claimant's shoulders and guided her to the floor.
He called for assistance and a Sergeant and two C.O.s responded and handcuffed
claimant. C.O. Arndt said that until claimant was in the handcuffs, she
continued to resist and was trying to get away from him. C.O. Arndt testified
that he did not strike claimant nor did he attempt to. He further stated that
he did not observe any C.O. strike claimant.
C.O.s are charged with the unenviable task of maintaining order and discipline
in correctional facilities under stressful circumstances (
Arteaga v State of New York
, 72 NY2d 212). It is well settled that C.O.s
are entitled to use physical force in order to achieve this goal, but "only such
degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2[b]).
The limited circumstances in which the use of force is tolerated by C.O.s are
set forth as follows:
"[a]n employee shall not lay hands on or strike an inmate unless the employee
reasonably believes that the physical force to be used is reasonably necessary:
for self-defense; to prevent injury to person or property; to enforce compliance
with a lawful direction; to quell a disturbance; or to prevent an escape" (7
NYCRR 251-1.2 [d]).
In situations involving inmate allegations of excessive force by a C.O., the
credibility of the respective witnesses is often the dispositive factor (
Davis v State of New York
, 203 AD2d 234). To determine, in a given
instance, whether use of force was necessary and, if so, whether the force used
was excessive or unreasonable, a Court must examine the specific circumstances
confronting the officers (see, Lewis v State of New York
, 223 AD2d 800;
Quillen v State of New York
, 191 AD2d 31; Brown v State of New
, 24 Misc 2d 358).
Based upon the documentary evidence and the testimony adduced at trial, the
Court finds that the force used by C.O. Arndt and the other C.O.s was initiated
in self-defense and was reasonably necessary to control claimant. The Court
concludes that claimant violated a direct order from C.O. Arndt and entered her
cell while the C.O. was conducting the cell search. The Court further finds the
testimony of the C.O.s to be credible that claimant attempted to punch C.O.
Arndt on two occasions and did succeed in knocking his hat off of his head.
Accordingly, the Court concludes that the force used was not excessive and the
defendant cannot be held liable (see,
Lippert v State of New York
, 207 Misc 632).
We now turn to claimant's cause of action for improper medical care.
To maintain an action for injuries sustained while under the care and control of
a medical practitioner, a party may proceed upon a theory of simple negligence
or upon the more particularized theory of medical malpractice (Hale v State
of New York
, 53 AD2d 1025, lv denied
, 40 NY2d 804). The theory of
simple negligence is restricted to those cases where the alleged negligent act
is readily determinable by the trier of the facts on common knowledge. However,
where the treatment received by the patient is an issue, the more specialized
theory of medical malpractice must be followed (see, Twitchell v MacKay
78 AD2d 125; Hale v State of New York
). Here, claimant is
not asserting a cause of action upon a theory of ordinary negligence, but one
upon a theory of medical malpractice as she is complaining about the quality and
sufficiency of the medical treatment she received.
The burden was on claimant to establish that the care and treatment afforded
her at the correctional facility constituted a deviation from the applicable
standard of care by credible evidence that the medical personnel at Bedford
Hills did not use reasonable care in the application of knowledge and skill
ordinarily possessed by practitioners in the field (
Hale v State of New York
; Pike v Honsinger
, 155 NY
201; Riley v Wieman
, 137 AD2d 309). The burden was also on claimant to
establish that the alleged negligence was a proximate cause of her damages,
i.e., that it was a substantial factor in causing or exacerbating her injuries
(Kennedy v Peninsula Hosp. Center
, 135 AD2d 788; Koster v
, 120 AD2d 644).
The State has an obligation to provide ordinary and appropriate medical
treatment to those inmates in its institutions (
Gordon v City of New York
, 120 AD2d 562, affd
70 NY2d 839). In a
medical malpractice action alleging improper treatment, such as this matter,
expert medical testimony is required (Morgan v State of New York
, 40 AD2d
891; see also, Macey v Hassam
, 97 AD2d 919). Claimant did not present
any expert testimony, nor did she provide any credible evidence that the medical
treatment she received was not proper. She also failed to establish that any
delay that may have resulted constituted medical malpractice or exacerbated her
In the absence of any testimony from a medical expert that the medical
treatment claimant received was improper, the Court must conclude that claimant
has failed to establish by a preponderance of the evidence that the medical care
provided to claimant was not appropriate or adequate.
The Court finds that claimant failed to establish a prima facie claim on medical
negligence or medical malpractice.
Therefore, in accordance with the foregoing, the claim is dismissed in its
entirety. The Clerk of the Court is directed to enter judgment
March 25, 2004
Plains, New York
HON. STEPHEN J. MIGNANO
Judge of the Court of