Claimant, an inmate proceeding pro se, brings this claim for damages alleging
correction officials required that he attend academic programming while in
prison notwithstanding a doctor's recommendation that he be permitted to
withdraw for psychological reasons. The claim proceeded to trial on June 13,
Claimant testified that he suffered from posttraumatic stress syndrome
resulting in an inability to remember what was taught in classes he attended as
part of his academic programming. On March 9, 2005 Al Shimkunas, Ph. D.,
Forensic Program Administrator, authored a memorandum advising Karen Johns,
Education Supervisor at Mt. McGregor Correctional Facility, that the claimant
was receiving treatment for severe posttraumatic stress disorder and
recommending "that he be waived from participation in academic programs due to
his disability" (Exhibit 1). Notwithstanding this recommendation, the claimant
testified that he was required to remain in class for another six months until
he suffered panic attacks, was unable to sleep and became depressed. He
testified that on September 19 and 20, 2005 he was ordered to take the T.A.B.E.
test, which is used to determine academic level, and that he refused. The
claimant's refusal to take the test as ordered resulted in the issuance of two
misbehavior reports (Exhibits A and B) which were later dismissed when the
claimant succeeded in securing an academic waiver from the program.
Exhibit 2 and Exhibit C reflect that on September 22, 2005 and September 23,
2005, respectively, the Deputy Superintendent for Programs approved claimant's
request for a waiver from the mandatory education policy based on the
recommendation of Dr. Shimkunas.
The defendant called Karen Johns to testify on its behalf. Ms. Johns
testified that she spoke with Dr. Shimkunas about the claimant and the fact that
he was doing well in the academic program following receipt of his
recommendation that the claimant be excused from class. As the result of this
conversation, Dr. Shimkunas agreed that the claimant could continue in the
program so long as he was doing well and there were no "issues". She testified
that all inmates are required to obtain a GED if they have no high school
Ms. Johns explained that the T.A.B.E. test is a national achievement test
which measures academic strengths and weaknesses and is used to create an
individualized academic program. She testified that the claimant filed a
complaint regarding his continued participation in the academic program as well
as the requirement that he take the T.A.B.E. test. Thereafter the claimant
became extremely negative and a detriment to the class, which resulted in the
decision to remove him from academic programming.
On cross-examination Ms. Johns testified that there were no problems with the
claimant until he refused to take the T.A.B.E. test in September, 2005. She
testified that the claimant was doing "quite well" in school prior to his
refusal to take the test.
The law is settled that when official action involves the exercise of
discretion, liability may not attach for the injurious consequences of that
action even if resulting from negligence (Lauer v City of New York
NY2d 95, 107 ; Tango v Tulevech
, 61 NY2d 34, 40 ).
"[D]iscretionary or quasi-judicial acts involve the exercise of reasoned
judgment which could typically produce different acceptable results whereas a
ministerial act envisions direct adherence to a governing rule or standard with
a compulsory result" (Tango v Tulevech
, 61 NY2d at 41). The conduct
complained of in this case was clearly discretionary, a fact made clear by
Department of Correctional Services directive 4804 entitled Academic Education
Program Policies which states: "If, in the judgment of the Deputy
Superintendent for Programs . . ., an inmate's medical, emotional or
psychological status is such that continued enrollment jeopardizes the safety or
security of the program area or is not in keeping with the individual's
treatment plan, education is not mandatory."
Consequently, the defendant is immune from liability in this
Moreover, to the extent a cause of action for negligent infliction of
emotional distress could be inferred from the claim, the claimant failed to show
through the submission of medical evidence that the defendant's conduct
unreasonably endangered his physical safety (Tatta v State of New York,
20 AD3d 825 ; cf. Johnson v State of New York, 37 NY2d 378
). Any claim of intentional infliction of emotional distress is similarly
lacking and, in any event, no such claim may be asserted against the State as a
matter of public policy (Augat v State of New York, 244 AD2d 835 ,
lv denied 91 NY2d 814 ).
For the foregoing reasons, the claim is dismissed.
Let judgment be entered accordingly.