New York State Court of Claims

New York State Court of Claims

GAGNE v. THE STATE OF NEW YORK, #2006-013-513, Claim No. 103202, Motion No. (M-70772)


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: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 31, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This claim was filed on October 10, 2000, and alleges the Defendant's negligence (1) in interfering with Claimant's medical treatment by allegedly forcing him to carry certain items despite an alleged medical "no work" order; (2) in his wrongful confinement to his cell for disciplinary reasons for refusing to work, and (3) related to injuries he sustained when he was forced to work and carry certain 50-pound laundry bags. The filed claim seeks recompense in the amount of $10,000.00 related to forced working; $3,750.00 for allegedly wrongful disciplinary confinements for 15 days at $150.00 per day, plus $100.00 per day for violation of Claimant's state constitutional rights and $5,000 for permanent hip and back injuries and mental anguish, for a total of $18,750.00.

At the commencement of trial, without opposition, I granted Claimant's application to reduce his
ad damnum from $18,750.00 to $9,700.00. Claimant noted that he was reducing his ad damnum by approximately 50% (actually 48%, rounded), and, since his application covered all items of damage, the ad damnum for each item of alleged damage is reduced by the same percentage. Moreover, to the extent that Claimant asserts damages for the alleged violation of his state constitutional rights, no proof or argument in that regard was offered, and it is deemed abandoned. In any event, the constitutional tort remedy recognized in Brown v State of New York (89 NY2d 172) is only appropriate, inter alia, where a claimant has no common law or statutory remedy available (Augat v State of New York, 244 AD2d 835, lv denied 91 NY2d 814). Here Claimant's constitutional rights can be addressed by legal remedies sounding in wrongful confinement and negligence. Unlike the claimants in Brown, who were limited to recovery by that action or nothing, here these remedies are available to Claimant, and an implied constitutional tort remedy is not (Bullard v State of New York, 307 AD2d 676; and see Lyles v State of New York, 194 Misc 2d 32, affd 2 AD3d 694). Accordingly, Claimant's state constitutional claims are dismissed.
It is alleged that Claimant, an inmate of Wende Correctional Facility (Wende), was repeatedly forced to carry 50-pound bags of laundry despite doctor's orders restricting him from such activity. On November 22, 1999, at a time when he was assigned to work as a company porter, Claimant was seen by members of the facility medical staff and was given a "no work" medical restriction, which noted that he not perform any physical labor or attend school (Exhibit 1-A).[1]
It is further clear that copies of this document were distributed to the block hall captain, as well as the nurse's station and medical records. Moreover, notice purportedly was verbally given directly to Correction Officer (CO) Dennis Edwards by Claimant, and by the listing of the names of Claimant and other inmates who may be restricted for varied reasons on a "greaseboard" near the hall captain's desk. Claimant testified that on occasions when he served as temporary company clerk, he listed his own medical restrictions on that "greaseboard," all indicative of evidence that the Defendant, primarily CO Edwards, knew or should have known of the medical restriction in place.
The first cause of action arose on May 4, 2000, when Claimant alleges that he was on a medical restriction of which the Defendant was on notice. Claimant contends that his back pain was so debilitating on that date that he was unable to perform the work to which he was normally assigned, and, when he declined/refused to obey a direct order from CO Edwards to perform the work, CO Edwards gave him a "ticket." A ticket is common parlance for an Inmate Misbehavior Report, which details the alleged offense and triggers a disciplinary procedure. Claimant alleges that this particular disciplinary proceeding caused him to be "keeplocked" for ten days, that he was afforded no due process and no hearing was ever conducted. While the ten-day duration of Claimant's keeplock is not buttressed by documentary evidence, it is supported by Claimant's generally credible testimony in this regard. He alleges a wrongful confinement because he should not have been ordered to go to work due to his existing medical restriction, and should not have been disciplined for refusing to obey such order.

There was extended discussion at trial regarding the authenticity of Claimant's Exhibit 1-B-1, which was purported to be the Inmate Misbehavior Report authored by CO Edwards for the incident of May 4, 2000. Claimant alleges that the original copy of this document that was in his possession was submitted in discovery in a related federal court action, and thus the proffered reproduction was all that he had in his possession. The Defendant notes that since the discipline was expunged from the Claimant's records maintained by the Department of Correctional Services (DOCS), it no longer had any copies to supply to the Court.

CO Edwards, testified forcefully that Exhibit 1-B-1 was a forgery, that while he had authored a misbehavior report for this incident, it was not the one offered, and affirmed under oath that he had never utilized a typewriter to write such reports in all his 17 years as a correction officer, and that he had hand-written all reports. Thus, while CO Edwards' signature and initials appear on Exhibit 1-B-1, he asserts that the narrative description, etc., is not authentic. A logbook entry for May 4, 2000, confirms the issuance of an Inmate Misbehavior Report for that day (Exhibit 1-B-2), but there are no other records to verify the duration of Claimant's tenure in keeplock status. It appears that there were no further disciplinary proceedings with respect thereto (
see Defendant's Exhibit A, the complete inmate disciplinary history for Claimant maintained by DOCS). The sole support of this contention is Claimant's testimony that he was keeplocked for ten days. While inmate Josef Fischl testified at trial that Claimant was keeplocked, he only testified that Claimant was locked up on May 4, 2000, but he provided no testimony about the duration of such confinement. Regardless, Fischl's testimony was so contrived that it is not worthy of belief.
Like CO Edwards, Claimant testified forcefully, albeit as to the authenticity of the proffered document (Ex. 1-B-1). Frankly, in this regard, the testimony of both Claimant and CO Edwards appeared credible to the Court. Accordingly, since it is acknowledged that an Inmate Misbehavior Report was issued that day, and since this is apparently the only purported copy thereof, I have decided to admit the document, and will give it such weight as I deem appropriate.

Claimant made a post-trial motion (No. M-70772)
, within ten days of the close of proof, seeking an order dismissing the Defendant's pleadings and defense upon the grounds of spoliation, alleging the Defendant's destruction of the May 4, 2000 Inmate Misbehavior Report while the matter was in litigation and the Defendant was putatively on notice of its probative value in this claim. Defendant replies that Claimant knew of the expungement of the Inmate Misbehavior Report from his record, much earlier, in the related federal court proceeding, and suggests that Claimant should have attempted to retrieve the "original" from the federal magistrate. Regardless, given my determination on the admissibility of Exhibit 1-B-1, this motion is denied.
Before considering whether Claimant was improperly or wrongfully confined for failing to obey a direct order, I must first determine whether he was under a medical restriction. The crux and essential element of this contention is a Medical Restriction dated November 22, 1999 (Exhibit 1-A) which in relevant part excuses Claimant from his present program due to a medical problem, and has no ending date. Claimant would have me believe that this medical restriction remained in full force and effect essentially in perpetuity. This theory was clearly and unequivocally refuted first by CO John Wright and then by Dr. Jacqueline Levitt, the Facility Health Services Director at Wende Correctional Facility. CO Wright, a hall block captain who has been employed by the DOCS for 22 years, testified that to his knowledge any medical restriction exists until such time as it is superceded by a subsequently written restriction. Dr. Levitt described the November 22, 1999 Medical Restriction as being pretty nebulous and difficult to interpret, and did not read it to mean an indefinite medical restriction, as they usually have an end date.

To support such analysis, I reviewed Claimant's Exhibit 1-O, particularly pages O-1 through O-8 which are a series of medical restrictions written respectively: on December 16, 1999 and ending on December 19, 1999; December 20, 1999 and ending on December 22, 1999; January 4, 2000 and ending on January 7, 2000; January 20, 2000 and ending on January 22, 2000; March 3, 2000 and ending on March 5, 2000; March 31, 2000 and ending on April 2, 2000; April 13, 2000 and ending on April 17, 2000; April 27, 2000 and ending on April 28, 2000. Were I to accept Claimant's theory that the November 22, 1999 medical restriction endured without end, none of these medical restrictions would have been necessary. I reject this theory and I note that the evidentiary record before me, as extensive as it is, provides no documentation that Claimant was under any medical restriction whatsoever on May 4, 2000, when he refused to obey a direct order from CO Edwards. Therefore, regardless of whether Exhibit 1-B-1 is authentic or not, the record before me does not support any theory which relies upon the allegation that Claimant justifiably refused to obey CO Edwards' order because he was under medical restriction.

Accordingly, the cause of action sounding in wrongful confinement in keeplock for the ten-day period commencing on May 4, 2000 is denied because the record is devoid of proof that he was under any medical restriction on May 4, 2000. Accordingly, any confinement in keeplock resulting from the Inmate Misbehavior Report of May 4, 2000 is not compensable.

Claimant alleges a number of occasions, June 22, 2000; June 29, 2000; July 6, 2000; July 12, 2000 and July 20, 2000, on which he alleges that he was ordered to carry laundry bags up and down the stairs (see Exhibit 1-E-4), allegedly despite medical staff restrictions, and that he filed numerous grievances relating thereto (
see, e.g., Exhibits 1-C-1). Claimant has established through laundry slips (Exhibit 1-E-4) that he did in fact perform the services listed thereon, and the Defendant stipulated that he acted as a porter on those occasions. It would also appear that there was a medical restriction of no work for the period from May 17, 2000 to September 30, 2000, dated May 17, 2000 (Exhibit 1-O-9), presumably superceded by a medical restriction of no work for the period from June 23, 2000 to June 26, 2000, dated June 23, 2000 (Exhibit 1-O-11). In any event, there were a number of medical restrictions over this period of time, and it is clear that Claimant did perform some laundry work on occasions when he was medically restricted from doing so. The grievances allege harassment and forced work by corrections staff, but there is no evidence, as to the specific dates listed above, that Claimant was confined in keeplock, or that he sustained causally related injuries or exacerbation of his existing back problems specifically as a result of the work on these dates. The only corresponding report in Claimant's medical records is an ambulatory health record for June 23, 2000 when he complained of being "layed [sic] up" with a back problem for a long time, and seeking three days in "medical keeplock" (see Court Exhibit A, p. 166 and Claimant's Exhibit 1-R-9). That same medical record notes that "no acute distress noted," and the Claimant's ambulatory health record contains no notes until July 27, 2000 (Court Exhibit A, p. 165). Accordingly, to the extent that he seeks damages for injuries incurred as a result of working on the dates listed above, or that his medical treatment was interfered with on such dates, that portion of his claim is dismissed.
Next I examine the incident of July 27, 2000, a date on which Claimant did perform laundry work (Exhibit 1-E-5), and when he
picked up a bag of laundry and put it on his shoulder, and then his legs gave out and he collapsed to the floor with one of the bags on top of him. Not surprisingly, there is a testimonial dispute as to the weight of the bags, with Claimant contending that each bag weighed 50 pounds, while CO Wright testified that they weighed between 30 and 35 pounds. As each witness was only estimating, and each may have been exaggerating somewhat, the actual weight is likely somewhere between the two.
Claimant alleges that when he fell, he hurt his back and hip. The medical department came and transported Claimant to the infirmary on a stretcher, he was given an injection and later returned to his cell in a wheelchair. On July 28, Claimant couldn't move and his ambulatory health record states that he couldn't walk to the infirmary. He testified that July 27, 2000 was his last day as a porter and that he has used a cane ever since, except as he acknowledged on cross-examination when he was housed at Southport Correctional Facility where facility security does not permit the use of canes. A permit was issued granting Claimant use of a cane on July 27, with an expiration date of September 30 (Exhibit 1-O-13).

With respect to injuries that Claimant sustained as a result of the July 27 incident, I note that CO Edwards has acknowledged that he was aware of the no work restriction for Claimant which was issued for a period of 90 days on May 17, 2000 (
see the Declaration of CO Edwards, paragraph 6, appended as Exhibit B to the Affirmation in Opposition of Ann C. Williams, Esq., to Motion No. M-70772). Accordingly, the Defendant must be held answerable in damages for those injuries directly attributable to this incident.
I address the incident of August 14, 2000, the first day that Claimant came out of his cell to go to the recreation yard. CO Edwards prevented Claimant from using his cane in the recreation yard. Claimant, at all relevant times in question, had been granted a cane permit which authorized him to use a cane. On that day, as clearly acknowledged, CO Edwards confiscated the cane on the mistaken belief at the time that canes were not permitted in the recreation yard. Claimant was given the option of not going into the yard, or going into the yard, but without his cane. He chose to enter the yard without his cane. This became the subject of a grievance and, as CO Edwards has acknowledged, canes are permitted in the recreation yard in these circumstances, and that correction officers may not supercede medical directives of this sort. Claimant avers that he limped around the yard and sustained pain and suffering on that day and for several days thereafter as a result of walking in the yard without his cane. His ambulatory health record for August 14, 2000 does reflect a complaint of back pain, although there is no further medical record until August 30, 2000 when Claimant refused an x-ray and physical therapy until he saw a doctor (Court's Exhibit A, p. 163).

Another complaint raised is an incident of September 1, 2000, when Claimant was deprived of the use of a wheelchair to attend a doctor's call out in the morning. He asked CO Edwards for a wheelchair, but he did not provide one, and locked Claimant up and issued an Inmate Misbehavior Report (a ticket) for his failure to go to the doctor's call out. Some 15 minutes later a correction sergeant came by and directed CO Edwards to get a wheelchair for Claimant's afternoon call out for physical therapy. The ticket went to a hearing a few days later, and the charges were dismissed (Exhibit 1- J-1) and Claimant thereafter filed grievances which were resolved (
see Exhibits 1-K-1 through K-7). There was no evidence before me that Claimant sustained any physical injury as a result of this incident and his medical care was not interfered with. To the extent that he alleges a wrongful confinement of five days, such action was discretionary and quasi-judicial, and as his due process hearing resulted in a not guilty finding, is not actionable (Exhibit 1-J-1; see Arteaga v State of New York, 72 NY2d 212, 216). Eventually he was provided a wheelchair that day for transport to the infirmary, and he sustained no compensable injuries as a result of the incident of September 1, 2000.
Accordingly, the only two incidents for which Claimant may recover are July 27, 2000, when he collapsed and the laundry bag landed on top of him, and August 14, 2000, when he went to the recreation yard without the benefit of a cane to which he was entitled. Claimant described his pain and suffering and testified to his situational depression, anxiety and stress. Claimant alleges that he now suffers from a "bulging, inverted disc" and is in constant pain.

It is difficult to differentiate between Claimant's pre-existing back injury and back pain, which was the reason for the November 22,1999 no work medical restriction in the first place, and whatever additional pain or worsening of his condition was proximately caused by the incident of July 27, 2000 when he was working, and the no cane incident of August 14, 2000. Claimant has called my attention to a lumbar spine MRI conducted on June 17, 2000 which recites that L4-5 level is normal and notes some minimal disc space narrowing and minimal disc bulges at L5-S1 (Exhibit 1-Q-3). Dr. Levitt described this as barely seen, and not severe. I note this report precedes the two incidents for which I find the Defendant answerable in damages.

In sum, I make an award based upon my subjective assessment of the pain and suffering sustained by Claimant as a result of these incidents, from their occurrence to the date of trial (past pain and suffering) and for his future pain and suffering from the date of trial, albeit without any evidence with respect to Claimant's life expectancy. As a result, I make a single award covering all pain and suffering, limited as I am by Claimant's
ad damnum for permanent hip and back injury and mental anguish (originally seeking $5,000.00, but as amended at trial to $2,600.00). As noted above, it is difficult to find permanence proximately caused by the exacerbation of a pre-existing back injury. Accordingly based upon the above, and upon careful review of Claimant's medical records and testimony and that of Dr. Levitt, I find that Claimant has been damaged in the sum of $1,100.00.
All motions not heretofore ruled upon are now denied.

To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).


March 31, 2006
Rochester, New York

Judge of the Court of Claims

  1. [1]Other medical restrictions covering relevant periods of time in question were admitted into evidence as Exhibit 1-O.