New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2006-030-028, Claim No. 107145


Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

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Claimant’s attorney:
Defendant’s attorney:
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Signature date:
October 23, 2006
White Plains

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See also (multicaptioned case)

Al Green alleges in Claim Number 107145 that defendant’s agents at Green Haven Correctional Facility [hereafter Green Haven] and other correctional facilities were negligent and deliberately indifferent as to his medical needs while he was in their care and custody from approximately December 24, 1999 through February 2, 2000, and thereafter until January 2001. Trial of the matter was held at Sing Sing Correctional Facility on August 25, 2006.
Claimant testified that on December 24, 1999 he was in the F-Block Housing Unit t Green Haven when he was put in handcuffs and taken over to H-Block and his “property came over about four hours later. Next thing . . . [he] knew, . . . [he] was put in shackles and transported by van to Mid-State Correctional Facility”
[hereafter Mid-State]. Shortly prior to this event, Claimant indicated that he had received surgery to his left leg or knee as a result of an injury he suffered while playing football. It was still healing after a two (2) week hospital stay and he was utilizing crutches to ambulate.
When he arrived at Mid-State he was served with a misbehavior report alleging he was responsible for an illegal work stoppage at Green Haven, in violation of facility policy, and he was placed in the special housing unit [hereafter SHU] until February 2, 2000. From Mid-State he was transferred to Wende Correctional Facility [hereafter Wende].
Mr. Green testified that throughout this period, presumably from December 24, 1999 to January 2001 - he complained about pain in his leg and knee, he knew that “something was not right” because he “would trip and fall for no reason.” Finally, when he was at Wende he was given medical treatment and a second surgery on his knee on January 8, 2001. He alleged that the reason he had to have this second surgery was because of his treatment immediately after his first surgery in 1999, when he was “dragged down the hall”, shackled and transported on a cramped bus to Mid-State, and then not provided with any medical care. He said that the January 8, 2001 surgery “was not a success” and he underwent additional surgery in 2002, and “to this day . . . [he requires] a brace to walk , suffers pain, and requires medication.” Mr. Green said that he seeks damages in the amount of $350,000.00.
In support of his claim Claimant submitted several documents in evidence. Portions of Claimant’s ambulatory health record [hereafter AHR] and other medical records, including outside hospital records and consultant’s reports, were admitted without objection. [Exhibit 1]. A misbehavior report, confirming Claimant’s testimony that he was charged with various facility violations involving the organization of work stoppages, occurring on December 24, 1999 was admitted. [Exhibit 2]. Claimant testified that a letter he wrote to the superintendent at Green Haven was written at the instruction of the hearing officer at Mid-State, in order to explain how a series of complaints he had filed throughout his tenure there resulted in what he thought was a retaliatory removal elsewhere. [See Exhibit 3]. Additionally, what Claimant described as the actual complaints were offered. [See Exhibit 5].
On cross-examination, Mr. Green explained that the entire prison was “shut down” on December 24, 1999, and he was not “keep locked pursuant to any alleged disciplinary violation” until he arrived at Mid-State. When he arrived at Mid State he was served with the inmate misbehavior report on December 28, 2006 [Exhibit 2]. A hearing on the disciplinary charges was “eventually” held.
Commencing on December 1, 1999 and ending on December 6, 1999, Mr. Green conceded he had also been involved in a disciplinary hearing concerning violations of facility rules on November 23, 1999, was found guilty of creating a disturbance, harassment and refusing a direct order, and was sentenced to thirty (30) days confinement. [See Exhibit A]. He explained that he only needed to serve fourteen (14) days, because part of the sentence - the remaining sixteen (16) days - was deferred for a period of ninety (90) days, provided he did not violate any disciplinary or other rules for that period. [See ibid.]. According to the time frame of the disciplinary disposition record, he would be released from the partial service of his confinement sentence on December 20, 1999, and the ninety (90) period began thereafter. [ibid.]. Mr. Green insisted, however, that the trigger for return to confinement based upon that sentence disposition would have to be conviction for a violation, not just the issuance of a misbehavior report, and he stated that he was “never found guilty.” He was, he agreed, held on “administrative confinement” but “illegally.” Administrative confinement is not based upon a disciplinary violation, but rather is an emergency confinement based upon the likelihood that an inmate poses an imminent danger to security concerns. Claimant argued that a hearing is required for administrative confinement as well, but then agreed that the hearing commenced at Mid State was indeed the beginning of the requisite hearing. Claimant would not agree that he essentially had two outstanding disciplinary findings to address: the deferred disposition from early December 1999, and the December 24, 1999 allegations.
On further cross-examination, Mr. Green confirmed that he was injured playing football, and was seen by medical providers at Green Haven. First he said he was “never seen by medical providers” at Mid-State for thirty (30) days, but then qualified his response when it was clarified that a registered nurse is a medical provider, saying he might have seen one at sick call, but did not see an orthopedist, and “could not recall seeing a provider.” He also thought that the term provider did not include nurses, but only physicians or physician’s assistants. He repeated that he did not get an operation on his knee until he had been complaining for over one or two years. He said he ultimately “had three (3) operations”, and thought it was too long to wait.
As part of his final argument, Claimant reiterated that he was not under any type of confinement, having already served the earlier sentence from December 6, 1999, when he was confined and removed on December 24, 1999. He also added that he was unaware of the gravity of his knee condition until it was explained to him at Wende; and he “did not realize the significance of re-injuring . . . [his] leg as a result of being placed on that particular van in cramped quarters, and not getting any medical treatment for 2 years . . . [he did not] realize the extent of his injury until after he came out of the operation, when the doctor explained what they had to do and why they had to do it.”
No other witnesses testified and no other evidence was submitted.
Although in his filed claim Mr. Green appeared to be asserting causes of action for wrongful confinement, constitutional tort, negligence and medical malpractice, the proof offered and testimony given appeared to concentrate on the negligence and medical malpractice aspects. Indeed, as to any cause of action for wrongful confinement or constitutional tort, no prima facie case was made out in any event.
To establish a prima facie case of wrongful confinement, a “species” of the tort of false imprisonment, [Gittens v State of New York, 132 Misc 2d 399, 407 (Ct Claims 1986)], a claimant must show “. . . (1) the defendant intended to confine him, (2) the . . . [claimant] was conscious of the confinement, (3) the . . . [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged . . . ” Broughton v State of New York, 37 NY2d 451, 456 (1975).
From the limited facts presented it would appear that correction officers acted within the bounds of New York State Department of Corrections rules and regulations. Having acted within the bounds of regulations, the quasi-judicial acts of correction employees taken in furtherance of authorized disciplinary measures are entitled to absolute immunity. Arteaga v State of New York, 72 NY2d 212, 219-220 (1988). If officers act inconsistently with their own rules and regulations, or otherwise act outside the sphere of privileged actions, liability may attach. The fact that charges are ultimately dismissed does not give rise to a cognizable cause of action when there is no evidence defendant acted inconsistently with its own rules and regulations. Arteaga v State of New York, supra.
With regard to any claim of constitutional tort, such a cause of action is countenanced only under limited circumstances.
Indeed, it is unclear what constitution Claimant claims has been violated. A claim alleging deliberate indifference to medical needs may constitute cruel and unusual punishment violating prohibitions against such treatment, but such a cause of action is often based upon a violation of the Federal Constitution, and should be pursued pursuant to 42 USC §1983. See De La Rosa v State of New York, 173 Misc 2d 1007 (Ct Cl 1997). No cause of action against the State of New York will lie in the Court of Claims for alleged violations of an individual’s rights under the United States Constitution [See Welch v State of New York, 286 AD2d 496, 498 (2d Dept 2001); Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989; Davis v State of New York, 124 AD2d 420, 423 (3d Dept 1986)], in that the State is not a “person” amenable to suit pursuant to 42 USC §1983. See also De La Rosa v State of New York, supra.
Deliberate indifference to an inmate claimant’s medical needs to a degree that it constitutes cruel and unusual punishment in violation of prohibitions within the State Constitution has been found to be an actionable constitutional tort. De La Rosa v State of New York, supra; Davis v State of New York, 5 Misc 3d 1011(A) (Ct Cl 2004). Claimant has not, however, established deliberate indifference after a full trial of the matter, and accordingly, the cause of action premised upon constitutional tort cannot be sustained.

Finally, with respect to any claim of negligence or medical malpractice, 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. Indeed, what medical records were submitted show that for an extensive period of time Claimant was seen by medical personnel after his football injury [See Exhibit 1], however without expert testimony such records are of limited utility. There is no medical evidence on any medical issue and thus no proof that accepted standards of care were not met. Accordingly, the claim of medical malpractice must be dismissed.
While Claimant may feel he was not attended to in a timely fashion, or that being seen by nurses on occasion was not reasonable care, without a witness with medical expertise, or a witness with knowledge of regulatory protocols, the causes of action for medical malpractice and negligence are not established. 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. To the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect is also dismissed.
Claimant has failed to establish his claim by a preponderance of the credible evidence and, accordingly, Claim Number 107145 is dismissed in its entirety.
Let Judgment be entered accordingly.

October 23, 2006
White Plains, New York

Judge of the Court of Claims

[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[2].With respect to alleged violation of the New York State Constitution, the factors the Court must consider to determine if a cause of action for a State constitutional tort is properly brought in the Court of Claims are whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole. Brown v State of New York, 89 NY2d 172 (1996). In New York, constitutional provisions are presumptively self-executing. Brown v State of New York, supra at 186. Violation of every self-executing provision will not always support a claim for damages however. Only where it is necessary to ensure the effectiveness and promote the purposes of the allegedly violated provision will a constitutional tort remedy be implied. Brown v State of New York, supra at 191.
[3].Additionally, there may be other relief available through a proceeding brought pursuant to Article 78 of the Civil Practice Law and Rules that could provide this Claimant with an alternative remedy, namely an order directing Defendant’s agents to consistently provide prescribed medical care to Claimant within applicable standards. See Domeneck v Goord, 20 AD3d 416 (2d Dept 2005).