James Anthony Carter, the Claimant herein, alleges in Claim Number 109781 that
Defendant’s agents failed to provide him with a medically necessary cane
and wrongfully withheld it to his injury while he was an inmate at Sing
Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held
at Sing Sing on January 13, 2006.
In his Claim, Mr. Carter alleges that on or about June 10, 2004 he was denied
the use of a cane that had been issued to him by medical personnel as he
recuperated from surgery on his foot. [Claim No. 109781,¶¶ 4-9].
Claimant testified that on February 9, 2004, he had surgery on his left foot
and ankle. As Mr. Carter described the surgery, bone marrow had been removed
from his left foot and placed in his ankle and a screw had been put in. He saw
, Dr. John Holder,
the orthopedic surgeon, on June 10, 2004 for a checkup, as he had every month
since the surgery.
Claimant recalled that on that day, the cast had been removed, the crutches
were taken back and Dr. Holder gave him a cane. [Exhibit 1]. In addition to
noting that the fusion site “improved” and that the screw was
intact, the consultant’s report for June 10, 2004 suggests:
“. . . use cane . . . [for] 6 . . . [weeks],” to be followed by an
x-ray of the left foot in July, and the use of “post-op shoe” for 6
weeks. [id.]. Claimant testified that he was given a medical pass
allowing the use of the cane.
Claimant said he went to the commissary after leaving the hospital, made his
purchases and returned to the housing block at about 2:45 p.m. He said:
“When I approached the yellow line before I came in to A-Block, Correction
Officer Patterson . . . [and others] were standing in front of the office of the
Officer in Charge (OIC).” Claimant entered the block with his cane and
holding his commissary items. Claimant went to his cell, called out his cell
number for it to be opened, leaning against a pipe with his leg elevated,
waiting to be admitted. Another inmate, Michael Watts, was down the hall
waiting for his cell to be opened as well. When the cell opened, Claimant said,
“I wasn’t thinking. I just took the bag and hopped over and threw
the bag into the cell. When I turned back to get my cane, . . . Officer
Patterson had taken my cane and started walking down the gallery with it.”
Claimant asked the officer “. . . where . . . [he] was going with my cane,
[and the officer responded] . . . ’It’s mine now, you
shouldn’t have left it there’” and would not return it.
Claimant described CO Patterson as “bopping” when he walked,
“showing off for the Lieutenant” on the block.
Claimant thought at the time that the officer would bring back the cane because
he appeared to be “only joking,” however Claimant was locked in his
cell and the cane was not returned. Claimant continued to call out for his cane,
saying he had a medical pass for its use, it had just been issued on that day,
but no one responded.
The shift for the correction officers changed at about 3:00 p.m. A sergeant
came on the gallery, and when Claimant told him that CO Patterson had taken his
cane, the sergeant told him to “speak with Patterson about it.” At
about 6:00 p.m. he finally spoke with CO Patterson, and told him that the cane
had just been given to him and he needed it. The correction officer said
“you don’t have a pass for it.” Claimant said he did, and
showed him the pass indicating “crutches/cane.” Patterson then went
to “check on it.”
Claimant went to the gym area in the meantime, and when he returned to speak
again to Patterson, was told that he had checked on the pass and that it had
been issued but that the “cane was gone.” When Carter said
“I need that cane” Correction Officer Patterson responded with
“well, you’re not gonna get it today, go to sick call
tomorrow.” When Claimant told the officer there was no sick call the next
day - a Friday - because former President Reagan had passed away and they were
holding a special memorial in the president’s honor, the correction
officer did not do anything. Reminded by Claimant that there was no sick call
on the weekends either, Patterson said, according to Claimant, “well I
guess you’re ass out of luck till next week.”
Claimant was “very upset.” He “was screaming [and using] a
loud boisterous voice” causing some other officers to come down the
gallery, who then spoke to him in his cell, assuring him that the matter would
be resolved the next day.
Officer Patterson came to his cell the next morning, and returned the medical
pass to him while Claimant was sleeping, but would not respond when Claimant
asked “where is my cane?” Claimant continued to voice his
complaints throughout the day.
Another officer saw claimant “limping out of . . . [his] cell” on
June 12, 2004 and asked him what was wrong. She then escorted him to the
facility emergency room, where he saw Nurse Hamaway. The notation on
claimant’s Ambulatory Health Record (AHR) for June 12, 2004 states:
“Says a c.o. took his cane last Thursday in spite of the fact he has valid
cane pass. And now his . . . [left] ankle is somewhat swollen. Advised to keep
foot elevated and rest it today and tomorrow.” [Exhibit 2]. Claimant said
“she gave me another cane, and told me to keep the pressure off until I
saw the surgeon again and that’s what I did.”
Claimant said that to this day he still has problems with his ankle and his
Claimant submitted the discharge instructions from his February 9, 2004 surgery
[Exhibit 3]; a consultation report by Dr. Holder dated May 13, 2004 [Exhibit 4];
an additional AHR reflecting entries for June 18, and June 24, 2004 [Exhibit 5];
and an x-ray report dated July 28, 2004. [Exhibit 6].
On cross-examination, Claimant indicated familiarity with facility rules and
also confirmed that he had filed a grievance with regard to the events of June
10, 2004. [Exhibit A]. The result of the grievance, he conceded, was that the
hearing officers concluded that “there was no evidence to indicate any
employees acted improperly” with regard to the complaint. [id.].
There was no indication that Claimant pursued further administrative review
of the grievance.
Mr. Carter said that the pipe where he hung the cane was 15 feet from his cell,
and that the commissary bag was heavy. He denied that he had already
“locked back” in his cell when the cane was taken, saying it was a
matter of “several seconds” between the time he hopped to his cell
with the commissary bag and turned back to find his cane missing. When he
turned to retrieve it, Officer Patterson was already walking away with it. The
cane did not have any special marks indicating that it belonged to Claimant.
Claimant denied being told by Patterson that the cane was in the medical
No other witnesses testified on Claimant’s direct case nor was any other
Correction Officer Robert Patterson testified as Defendant’s first
witness. He indicated that he has worked for the New York State Department of
Corrections (DOCS) for almost nine years. CO Patterson indicated he was
familiar with the Claimant since Claimant “locked in cell H-21 and he was
the H-Gallery Officer,” and described himself as “know[ing] Mr.
Carter very well . . . we had a somewhat decent rapport.” CO Patterson
described “decent rapport” as meaning, “I respected him, he
respected me to a certain extent, we knew our limits, but he listened to what I
had to say, and I listened to what he had to say and we never crossed the
Officer Patterson testified that on June 10, 2004 Mr. Carter as well as other
inmates were observed coming in to the block from the commissary. Mr. Carter
was carrying a very large commissary net bag. Officer Patterson said: “The
bag was hunched over his right shoulder, his cane was hooked on his arm.”
Mr. Carter proceeded down the gallery to his cell, and went in. Shortly
thereafter, the Lieutenant walked in the block. From CO Patterson’s
viewpoint by the OIC he could see Claimant’s cell “very
clearly.” There was one other inmate out on the end of the gallery down
by “one cell or two cell, . . . A-block is classified as two football
field lengths and the OIC’s office is in the middle with a clear view
straight down the gallery.”
When the Lieutenant looked down the gallery he noted the unattended cane
hanging on the pipes, and Officer Patterson went down the gallery to retrieve it
once the Lieutenant - his “superior officer” - pointed it out to
him, before the Lieutenant “said anything else.” CO Patterson said
that an unattended cane would be “a problem” because the south
H-gallery is where the “bulk of the inmate population” passes
through on its way out of the block. Anywhere from 100 to 200 inmates would
pass by. The cane was “just there dangling, and just one inmate was on
the gallery, and he was nowhere near it. I picked it up brought it to the
OIC’s office where it could be secure around officers until we could
determine what to do with it.” Officer Patterson explained that “a
cane or crutch becomes a dangerous instrument in anyone’s hands at any
given moment.” When he saw the cane, he did not know that it was Mr.
Carter’s cane, there were no identifying markings on the cane. Indeed,
when he picked up the cane, Mr. Carter was sitting in his locked cell with the
commissary items spread on his bed.
CO Patterson recalled that the Lieutenant came in to make his rounds for the
change of shift between 3:20 p.m. and 3:30 p.m., which was approximately when
Officer Patterson picked up the cane. After the 4:00 p.m. count, CO Patterson
had to direct “the 4:30 p.m. insulin run,” which included 25 to 35
inmates. He sent the cane with the escorting officer to take to the medical
department. The medical department could not say who it belonged to.
Later that afternoon, when it was time for Mr. Carter to take his medical
shower at approximately 6:00 p.m., Officer Patterson first learned directly from
Mr. Carter that it was likely his cane that had been confiscated, and Officer
Patterson told him it was “in medical.” Officer Patterson
acknowledged hearing Claimant “screaming at about 4:30 p.m., but A-Block
holds about 684 convicts they yell and scream all day long.”
Officer Patterson said he was “not bopping” down the gallery with
the cane when he confiscated it, and was most unlikely to have been doing so,
when his superior officer was there after pointing out there was negligence on
the gallery CO Patterson was responsible for. CO Patterson also said that there
are 75 feet between the Claimant’s cell and the shower, and that he had
seen Claimant negotiate that distance as well as the walk from the gate with a
heavy commissary bag in hand without the use of a cane.
On cross-examination, Officer Patterson agreed that several different people
kept coming up saying “Carter said give him back his cane,” but said
that in terms of actually identifying the cane that he had retrieved as
belonging to Claimant, there was nothing that would officially say that it was.
The medical department - which was in the best position to determine whose it
was - could not say. Officer Patterson reiterated that it was an unattended
cane when he picked it up, he returned it to the medical department, and did not
learn until the time that Claimant was taking his medical shower that it might
be his. As CO Patterson explained his understanding of his job, he was not
required to pursue the matter for Claimant, but rather to secure the housing
block. Officer Patterson conceded that when he heard Claimant screaming about
his cane, he still had the cane he had retrieved in his “possession for
the moment.” Somewhat illogically, CO Patterson agreed that he did not
think to ask Claimant whether the cane the officer retained belonged to
Claimant. “Having just been up on the gallery, and having seen Claimant in
his cell with the commissary bag, . . . [he] assumed the Claimant’s cane
was in there too.” He said that Claimant was generally loud, and that he
did not take notice of the complaints until Claimant became even louder and more
Correction Officer Patterson recalled returning the medical pass for the cane
to the Claimant the next day. He would not concede that he simply wanted to
“teach . . . [the Claimant] a lesson” when same was suggested by
Dr. John Perilli, medical director at Sing Sing, testified briefly concerning
his review of Claimant’s medical records. Dr. Perilli indicated that the
June 10, 2004 consultation by Dr. Holder also recommended “physical
therapy” and “full weight bearing” in addition to
discontinuing the crutches and the suggested use of a cane. [Exhibit 1].
Although Dr. Perilli could not say what Dr. Holder’s intentions were
regarding suggesting a cane, Dr. Perilli explained that generally a cane is an
ambulatory aide, not a necessity. According to the June 10, 2004 consultation
report the Claimant was allowed full weight bearing - “what we all
normally do.” A month earlier, in the consultation report dated May 13,
2004, Dr. Holder noted that Claimant was “[weight bearing] on shoe despite
non- . . . [weight bearing] instruction.” [See Exhibit 4].
Dr. Perilli said that after reviewing the Claimant’s medical record,
there is nothing contained therein suggesting that Claimant was injured, or that
his healing process was compromised, by the confiscation of the cane on June 10,
2004. Shown the AHR for June 12, 2004 containing the nurse’s notes, Dr.
Perilli explained that the notes in the top portion record what the patient -
here, the Claimant - reported to the Nurse. [Exhibit 2]. Notably, even if the
notation that the left ankle was “somewhat swollen” is the
Nurse’s observation, that is all it is: an observation. Whether it relates
to the confiscation of the cane is not shown on this record.
No other witnesses testified and no other evidence was submitted.
Mr. Carter has not established a claim upon which relief can be granted based
upon the evidence submitted here. Even assuming that CO Patterson behaved in
the school yard bully fashion Claimant describes, Claimant has simply not
established any nexus between the confiscation of his cane and any harm. There
is no showing that other than some temporary inconvenience, Mr. Carter was
damaged. Indeed, a review of the medical record submitted shows that the
operating instruction at the time of the cane’s confiscation is that
Claimant commence weight bearing on his left foot, and Claimant clearly was able
to ambulate - however awkwardly he claims - while carrying a large, commissary
It is “fundamental law that the State has a duty to provide reasonable
and adequate medical care to the inmates of its prisons,” including proper
diagnosis and treatment. Rivers v State of New York, 159 AD2d 788, 789
(3d Dept 1990), lv denied 76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must
prove (1) a deviation or departure from accepted practice and (2) evidence that
such deviation was the proximate cause of the injury or other damage. A cause
of action is premised in medical malpractice when it is the medical treatment,
or the lack of it, that is in issue. A Claimant must establish that the medical
caregiver either did not possess or did not use reasonable care or best judgment
in applying the knowledge and skill ordinarily possessed by practitioners in the
field. The “ ‘claimant must [demonstrate] *** that the physician
deviated from accepted medical practice and that the alleged deviation
proximately caused his . . . injuries’ (Parker v State of New York
, 242 AD2d 785, 786).” Auger v State of New York, 263 AD2d 929,
931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to
liability on the part of the State can be sustained. Hale v State of New
York, 53 AD2d 1025 (4th Dept 1976), lv denied 40 NY2d 804 (1976). A
medical expert’s testimony is necessary to establish, at a minimum, the
standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then
the alleged negligent omissions or acts by the State’s employees can be
readily determined by a fact finder using common knowledge without the necessity
of expert testimony. Coursen v New York Hospital-Cornell Med. Center,
114 AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for
ministerial neglect if its employees fail to comply with an institution’s
own administrative procedures and protocols for dispensing medical care to
inmates. Kagan v State of New York, 221 AD2d 7, 10 (2d Dept 1996).
In this case, only the testimony of the Claimant has been presented in support
of any claim of malpractice. No competent medical evidence was presented,
through a treating physician or an expert witness whose opinion was based upon
the available medical records, to support the allegation of medical malpractice.
There is no medical evidence on any medical issue and thus no proof that
accepted standards of care were not met or that Claimant’s condition was
worsened as a result. Accordingly, the claim of medical malpractice must be
Additionally, from this record there is no indication that the actions of
medical caregivers amounted to simple negligence or ministerial neglect.
Coursen v New York Hospital-Cornell Med. Center, supra; Kagan v
State of New York, supra; cf. Jacaruso v State of New York,
Claim No. 97721 (Lebous, J., filed September 9, 2002). To the extent the claim
can be read to assert such theories, any cause of action for negligence or
ministerial neglect is also dismissed.
The State cannot be held liable for the intentional infliction of emotional
harm. The State is an entity, incapable of forming the requisite intent.
Furthermore, “. . . public policy prohibits a claim for intentional
infliction of emotional distress from being brought against the State . . .
(citation omitted),” De Lesline v State of New York, 91 AD2d
785, 786 (3d Dept 1982); and the State is not subject to punitive damages.
Sharapata v Town of Islip, 56 NY2d 332, 334 (1982); Wheeler v State of
New York, 104 AD2d 496, 498 (2d Dept 1984). Accordingly, the aspect of the
claim asserting intentional infliction of emotional distress does not state a
viable cause of action.
Similarly, a claim seeking recovery for negligent infliction of emotional
distress without alleging a “. . . contemporaneous or consequential
physical injury . . . ” [See, Johnson v State of New York,
37 NY2d 378, 381 (1975)], must generally be premised upon a breach of duty owed
directly to a claimant, which either endangered his physical safety or caused
him to fear for his own physical safety. Thomas v Supermarkets Gen.
Corp., 154 Misc 2d 828 ( Sup. Ct., 1992 Nassau County). Again, here, the
cause of action is not established.
The “. . . elements of a cause of action for prima facie tort are (1) the
intentional infliction of harm, (2) which results in special damages, (3)
without any excuse or justification, (4) by an act or series of acts which would
otherwise be lawful . . . (citations omitted).”
Freihofer v Hearst Corp., 65 NY2d 135, 142-143 (1985). Importantly,
“[a] critical element of the cause of action is that . . . [claimant]
suffered specific and measurable loss, . . . [requiring] an allegation of
special damages . . . (citations omitted). Moreover, it has been observed
that ‘[p]rima facie tort should not become a ‘catch-all’
alternative for every cause of action which cannot stand on its own
legs.’. . . (citations omitted).”
[id.] Accordingly, characterizing any of the causes of
action Claimant asserts in his Claim as a prima facie tort also will not lie.
Finally, those parts of the claim alleging violations of the United States
Constitution must also be dismissed. It is well established that claims
alleging violation of an individual’s rights under the United States
Constitution are not actionable in the Court of Claims. See Brown v
State of New York, 89 NY2d 172 (1996). If the present claim can be read to
allege violation of provisions of the New York State Constitution - and this is
not clear from a fair reading of the claim - it is also established that not
every violation of a State constitutional provision will have a remedy implied
in the Court of Claims. Brown v State of New York, supra;
Remley v State of New York, 174 Misc 2d 523 (Ct Cl 1997).
Accordingly, Claimant has not established entitlement to relief by a
preponderance of the credible evidence, and Claim Number 109781 is in all
Let judgment be entered accordingly.