New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2007-015-565, Claim No. 110159


Synopsis


Pro se inmate claim setting forth five unrelated causes of action was dismissed following trial. No cause of action for alleged violation of the NYS Constitution based upon an alleged unlawful cell search was viable as prisoners have no legitimate expectation of privacy in their prison cells. In addition, Directive 4910 governing the conduct of unscheduled cell searches permits the exercise of discretion for which liability may not attach. Cause of action for wrongful confinement was barred by the doctrine of collateral estoppel where it was previously established that an extension for the completion of a protective custody hearing had been obtained. Cause of action for negligent exposure to a chemical agent used to extract a prisoner from a nearby cell was dismissed as claimant's proof failed to establish a deviation from the applicable standard of care for the use of such chemical or that he was exposed to a sufficient level of the toxin to cause injury. Cause of action for unlawful use of mechanical restraints was dismissed as the applicable regulation governing their use, 7 NYCRR § 250.2 (h) permits the exercise of discretion in the use of such restraints. Last cause of action alleging a deprivation of outdoor exercise was dismissed as proof failed to establish that the claimant was deprived of outdoor exercise.

Case Information

UID:
2007-015-565
Claimant(s):
EDWIN LAMAGE
Claimant short name:
LAMAGE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110159
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Edwin Lamage, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 5, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, originally set forth eight causes of action in his claim, five of which proceeded to trial on September 12, 2007. The second and seventh causes of action were discontinued upon stipulation of the parties prior to the date of trial and the claimant's fifth cause of action was dismissed by Decision and Order of this Court dated April 17, 2007
.
Claim For Wrongful Cell Search

Claimant seeks damages in his first cause of action, denominated as one for "[w]rongful illegal cell search", for an alleged unauthorized search of his cell in the special housing unit on September 25, 2004 while incarcerated at Great Meadow Correctional Facility. As alleged in the claim, Correction Officer Brooks (CO Brooks) received a complaint from another inmate that the claimant had stolen his white sweatshirt and a mirror. Claimant alleged that CO Brooks searched his cell recovering only the claimant's white sweatshirt which had been taken from him and returned later that same day. In addition to the allegation that the search was unauthorized, the claimant alleges that no contraband receipt was provided nor was the search recorded in the SHU logbook. Claimant alleges that the search was a "violation of search and seizure" and that he suffered degrading treatment, mental depression, discomfort and anger as a result.

Claimant reiterated at trial that CO Brooks was not authorized to search his cell and failed to provide him with a contraband receipt. Claimant's Exhibits 1 through 3 were received in evidence. Exhibit 1 is a page of the SHU logbook which indicates that the claimant's cell was frisked at 9:00 a.m. Exhibit 2 is a transcript of a disciplinary hearing conducted on October 21, 2004. Exhibit 3 is a copy of DOCS Directive 4910.

Directive 4910 states that unscheduled cell searches may be conducted where there is "reasonable suspicion that contraband is contained in the housing unit" and that "[s]uch search must be authorized by a supervisor except that when there are reasonable grounds to believe that a search is immediately necessary to prevent death, injury, or the destruction of contraband. . . " The Directive also provides that findings of contraband "should" be recorded (see Directive 4910 VI [B]). Correction Officer Brooks testified on behalf of the defendant that he received a complaint from another inmate on September 25, 2004 alleging the claimant had stolen an item of his clothing. He then proceeded to the claimant's cell and, without the necessity of a search, the claimant produced a sweat suit. No cell frisk was conducted, no contraband was recovered and no contraband receipt was completed, according to CO Brooks.

The allegation that the defendant's unauthorized search of the claimant's cell was a "violation of search and seizure" appears to allege a claim for a violation of either the 4th Amendment to the United States Constitution or Article I, § 12 of the N.Y. Constitution, both of which prohibit unreasonable searches and seizures. To the extent the claim alleges a violation of the United States Constitution, it must be dismissed as the Court of Claims does not have jurisdiction over federal constitutional tort claims (Brown v State of New York, 89 NY2d 172 [1996]). To the extent the first cause of action alleges a violation of the N.Y. Constitution and no alternate avenue of redress is available, the cause of action lacks merit as it is well-settled that prisoners have no legitimate expectation of privacy in their prison cells (People v Frye, 144 AD2d 714 [1988], lv denied 73 NY2d 891 [1989]; Hudson v Palmer, 468 US 517 [1984]; Willis v Artuz, 301 F.3d 65 [2d Cir 2002].

Moreover, the basis for the claim of a violation of the claimant's alleged right to privacy is the requirement in Directive 4910 that an unscheduled search "must be authorized by a supervisor except that when there are reasonable grounds to believe that a search is necessary to prevent death, injury, or the destruction of contraband, the employee may conduct the search and then submit a written report to his or her supervisor explaining the urgency of the search and its results." When official action involves the exercise of discretion, liability for money damages may not attach for the injurious consequences of that action (Lauer v City of New York, 95 NY2d 95 [2000]; Arteaga v State of New York, 72 NY2d 212 (1988). As stated by the Court of Appeals in Arteaga, "[i]n carrying out their duties relating to security and discipline in the difficult and sometimes highly stressful prison environment, correction employees, like other officials with quasi-judicial responsibilities, should not be inhibited because their conduct could be the basis of a damage claim" (id. at 219). Here, the conduct complained of was discretionary, a fact made clear by the applicable Directive permitting an unscheduled search under specified circumstances. Whether "reasonable grounds" exist under the Directive is necessarily a discretionary determination as it is dependent upon the facts and circumstances existing at the time. In the instant matter, Exhibit 2, the transcript of the claimant's administrative segregation hearing, reflects that DOCS had received a complaint from another inmate that the claimant had assaulted him, stolen his clothes and continued to threaten his safety.

For the foregoing reasons, claimant's first cause of action is dismissed.

Claim For Wrongful Confinement

Claimant alleges in his third cause of action that he was wrongfully confined in the protective housing unit of Great Meadow Correctional Facility from April 20, 2004 through October 3, 2004. The basis for the claim is that the "defendant . . . did not request and did not receive a [sic] involuntary protective custody (I.P.C.) hearing extension, authorization to complete such hearing over the 14th day for the involuntary protective custody recommendation dated 3/31/03." In a prior claim (claim number 109310), the claimant alleged that he was wrongfully confined from March 31, 2004 through April 19, 2004 based, in part, on the same contention that the I.P.C. hearing was not timely completed. In this regard the prior claim alleged that "[d]efendant extended claimants [sic] I.P.C. hearing and extended claimants [sic] keeplock to a cell over the 14 day [sic] with the absent [sic] of a [sic] extension for the I.P.C. recommendation written report dated 3/31/03. . . . 6 days extended from 4/14/04 - 4/19/04" (see ¶ 10 of claim number 109310). The prior claim was dismissed by Decision of this Court dated May 10, 2007 because "with respect to the claim that the hearing was not completed in a timely manner in violation of § 251-5.1 (b), the Court notes that an extension for the completion of the hearing was obtained on April 13, 2004" in compliance with the regulation[1].

Application of the doctrine of collateral estoppel precludes relitigation of the issue of the timeliness of the claimant's I.P.C. hearing in the instant claim. "Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity" (Buechel v Bain, 97 NY2d 295, 303 [2001]). The two prerequisites to the application of the doctrine have been met in this case - the identical issue was necessarily decided and the party against whom preclusion is sought had a full and fair opportunity to contest the issue (id. at 303-304). As the prior Decision and Order of this Court stands as a conclusive bar to relitigating the very same issue here, the defendant's trial motion to dismiss this cause of action on this basis is granted, and the claimant's third cause of action is dismissed[2].

Claim For Exposure To A Chemical Agent

Claimant alleges in his fourth cause of action that the defendant failed to protect him from exposure to a chemical agent which was used by correction officials to extract an inmate from a nearby cell. At trial it was established that the claimant was housed in the B1-22 cell in the special housing unit, seven cells away from cell B1-15 where the extraction team utilized the chemical agent. Claimant failed to establish that the use of this chemical agent seven cells away from the cell in which the claimant was housed constituted a deviation from applicable standards of care (see generally Trimarco v Klein, 56 NY2d 98, 105-107 [1982]; Diaz v New York Downtown Hosp., 99 NY2d 542, 544 - 545 [2002]). Claimant also failed to establish that he was exposed to sufficient levels of the toxin to cause the particular symptoms alleged (see Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]).

Moreover, the testimony of Correction Officer Murphy, who was present on the unit on the date of the extraction, established that the standard procedure is to ask the inmates in the two cells to either side of the cell where the chemical is to be utilized whether they wish to be removed prior to the use of the chemical. According to the testimony of Correction Officer Murphy, which the Court finds credible, it was therefore unnecessary to ask the claimant, housed in cell B1-22, if he wanted to leave as he was housed at a sufficiently safe distance. Accordingly, claimant's fourth cause of action is dismissed.

Claim For "Illegal" Use Of Mechanical Restraints

Claimant alleges in his sixth cause of action that the use of mechanical restraints on October 7, 2004 was illegal thereby entitling him to damages[3]. The claim alleges that the claimant was transported from Attica Correctional Facility to Wyoming Correctional Facility for a Court appearance and that he remained in full mechanical restraints, consisting of handcuffs, leg irons, and chains for ten hours. At trial the claimant testified that upon his arrival at Wyoming Correctional Facility correction officials failed to remove the mechanical restraints despite the absence of an authorization for use of the restraints from either the Superintendent or a Judge. In support of his contention that this use of restraints was "illegal" the claimant relies on Directive 4932 (claimant's Exhibit 17), which states in pertinent part the following:
"(g) Mechanical means of physical restraint must never be used for disciplinary purposes. Mechanical means of physical restraint may be used only when necessary while transporting inmates within or outside of the facility, or on orders of the facility Superintendent, and/or a physician when either deems it necessary to prevent injury to the inmate or to others."
Here, there is no allegation that the restraints were used for disciplinary reasons and the applicable Directive, which is embodied in 7 NYCRR § 250.2 (h), permits the use of such restraints "when necessary while transporting inmates within or outside of the facility". Thus, the regulation itself permits the exercise of discretion in the use of restraints during transport outside the facility. Such discretionary conduct provides no basis for liability (see Arteaga v State of New York, supra; Holloway v State of New York, 285 AD2d 765 [2001]). No violation of a ministerial regulation having been established, the cause of action is dismissed.

Claim For 23 Days Deprivation Of Outdoor Exercise

Claimant alleges in his eighth cause of action that he was wrongfully deprived of one hour outdoor exercise on each day from November 11, 2004 through December 3, 2004 while administratively confined in the special housing unit. It is alleged that following a disciplinary hearing on November 10, 2004 the claimant was found guilty of a rule violation and that the penalties imposed included the loss of recreation for thirty days, which he claims was in violation of Directive 4933, a copy of which was received in evidence as Exhibit 22. This Directive, embodied in 7 NYCRR § 304.3, requires that "[i]nmates confined in the SHU must be permitted one hour of outdoor exercise daily."

The claimant testified at trial that the penalty imposed by the hearing officer, which included the loss of recreation for thirty days, violated this regulation. The transcript of his disciplinary hearing, received in evidence as Exhibit 20, reflects that the claimant objected to the loss of recreation because the opportunity for outdoor exercise while confined to SHU was mandatory. In response, the hearing officer indicated that the penalty would be imposed only upon his discharge from SHU (see Exhibit 20, p. 21).

Defendant called CO Brooks to testify on its behalf at trial. CO Brooks explained that the opportunity for outdoor exercise is offered to each inmate. Ordinarily a list of those inmates who desire outdoor exercise is made each morning. For those who sign-up but later decide not to go outside, a logbook entry is made noting the refusal. For those inmates who do not sign-up for exercise on a particular day, no refusal is noted. CO Brooks confirmed that a disciplinary penalty for loss of recreation is not imposed upon inmates in SHU. In addition, he stated that the disposition sheet of the hearing which reflects "C & R" indicates that the claimant was "counseled and reprimanded" and the penalties, including the loss of recreation, were suspended.

Copies of the logbook for the B1 unit of SHU for the period November 11, 2004 through December 3, 2004 were received in evidence as Exhibit A-1 through W-1. Review of the logbook reveals that the claimant refused outdoor exercise on all of the dates for which he was allegedly deprived except November 13th, 19th, 25th, and 29th. As for those dates, no entry was made. However, the testimony of CO Brooks established to the Court's satisfaction that the failure to note a refusal does not necessarily mean that outdoor recreation was denied but may also indicate that the inmate did not sign-up for outdoor exercise on that particular date.

The Court finds that the claimant failed to prove by a preponderance of the credible evidence that he was deprived of outdoor exercise as alleged. Accordingly, claimant's eighth cause of action is dismissed.

Based on the foregoing the claim is dismissed in its entirety. Let judgment be entered accordingly.



November 5, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1]. Claimant also alleged in the prior claim that the defendant failed to allow him to call witnesses at his I.P.C. hearing in violation of 7 NYCRR § 253.5 (a). This Court held that the defendant's conduct was discretionary and immune from liability in reliance on Arteaga v State of New York, 72 NY2d 212 [1988]).
[2]. Exhibit 5 also confirms that an extension for the completion of the hearing was granted to April 19, 2004 due to the unavailability of a witness.
[3]. A similar claim that the use of mechanical restraints was illegal was made by this claimant and rejected (Lamage v State of New York, Ct Cl, December 11, 2006 [Claim No. 108580, UID # 2006-041-508] Milano, J., unreported)