New York State Court of Claims

New York State Court of Claims

TOR v. THE STATE OF NEW YORK, #2007-015-566, Claim No. 110874


Trial decision dismissed pro se inmate's causes of action for assault by correction officers, failure to provide timely medical care, violations of the Federal and NYS Constitutions, wrongful confinement, and intentional infliction of emotional distress.

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:
Budha Tor, 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 8, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, alleges that he was forcibly removed from the Great Meadow Correctional Facility (Great Meadow) infirmary by correction officers and beaten without just cause or provocation. He alleges that he sustained multiple injuries, including a fractured pelvis and a "broken hand" for which he did not receive timely medical treatment. Claimant also claims that his forcible removal from the infirmary was without proper authorization and prevented him from receiving necessary medical treatment for his asthma. Claimant alleges causes of action for assault, various violations of the Federal and New York State Constitutions and that he was wrongfully confined to his cell and denied privileges, religious services and programs.
The claim proceeded to trial on September 12, 2007. Claimant testified that he was admitted to the infirmary at Great Meadow for the treatment of asthma on July 19, 2004. On July 20, 2004 a correction officer entered the infirmary complaining that he smelled cigarette smoke. The officer left the infirmary and returned ten minutes later accompanied by other correction officers. The correction officers first searched another inmate in the infirmary and the claimant told the correction officers to leave the inmate alone. According to the claimant he was then "snatched" out of bed by Correction Officer Little and thrown to the floor. Handcuffs were applied and the claimant was thereafter beaten about his hands with a baton. Claimant testified that the assault was unprovoked, that he sustained a fractured pelvis when he was thrown to the floor and that he was removed from the infirmary without authorization and returned to his cell before the treatment for his asthma had been completed. On Wednesday, July 21, 2004, one day after the incident, the claimant complained to correction officials regarding the lack of medical treatment but was told that there was no sick call on Wednesdays. On July 22, 2004 the claimant was admitted to the infirmary where he remained for five days. During that time his asthma was treated and X-ray examination revealed a fractured pelvis and a "broken knuckle on his pinky finger." On cross-examination the claimant testified that the X ray of his pelvis was performed on July 22, 2004 and that the X ray of his hand was performed several days later.

The claimant testified that he should not have been released from the infirmary on July 20, 2004 because, as reflected in his medical records, his "peak air flow" was only 280, far below that which would normally warrant the termination of in-patient treatment.

The defendant presented the testimony of Correction Sergeant Thomas LaPier whose duties at the time of the alleged incident included making rounds of the infirmary. Sergeant LaPier testified that on July 20, 2004 he observed the claimant and another inmate "violently exchanging punches" in the infirmary. After several direct orders were given, the inmates stopped fighting. Claimant was then taken for a "fight examination" and released to his cell. Sergeant LaPier completed a misbehavior report (Exhibit A) and a fight investigation report (Exhibit B) both of which are consistent with his testimony as set forth above. Following a hearing the claimant was found guilty of violent conduct, fighting and refusing a direct order and a penalty of thirty days keeplock and the loss of various privileges was imposed.

Review of the claimant's medical records, received in evidence as claimant's Exhibits 1 and 2 and defendant's Exhibit D, confirm that the claimant was diagnosed as having a broken pelvis following an X- ray examination on July 22, 2004. An X ray of the claimant's right hand taken on July 29, 2004 revealed "[a]n acute boxer's fracture of the right hand." The claimant was seen by an orthopedic surgeon on August 5, 2004 who placed his hand in a cast and indicated in a report that "the hip is doing quite well. I don't think it needs any treatment. It will heal on its own."

The defendant next called Nurse Mary Harris to testify at trial. Upon review of the medical records received in evidence as defendant's Exhibit D Nurse Harris testified that a "fight exam" was performed on July 20, 2004. However, she had no personal knowledge with respect to the examination because she was not present at the time it was conducted. Her first involvement with the claimant's treatment was on July 22, 2004, two days following the incident. She testified that at that time the claimant complained of difficulty walking. With respect to the claimant's testimony that he was denied treatment on July 21, 2004 because there was no sick call on Wednesdays, Nurse Harris testified that although there is no standard sick call on Wednesdays, emergency sick call is always available.

Also included as part of defendant's Exhibit D is a discharge summary dated July 20, 2004 indicating that the claimant's "[a]sthma improved nicely" and that he was discharged to the general population with a prescription for various medications.

The Assault Cause Of Action

While the claimant testified that he was "snatched" from his bed and thrown to the floor and thereafter beaten about his hands with a baton, Sergeant LaPier testified that no such events ever occurred. Resolution of this factual dispute requires this Court to assess the credibility of the witnesses (Goncalves v State of New York, 1 AD3d 914 [2003]; Davis v State of New York, 203 AD2d 234 [1994]; Le Grand v State of New York, 195 AD2d 784 [1993], lv denied 82 NY2d 663 [1993]).

First, although the claimant testified that he was taken directly to his cell and that there was no "fight exam", both the medical records and the testimony of Sergeant LaPier and Nurse Harris indicate otherwise. Second, although the claimant testified that there was no medical authorization for his discharge from the infirmary on July 20, 2004, the medical records clearly include such an authorization. Third, the claimant's testimony at trial was inconsistent with the allegations in the grievance he filed dated July 27, 2004. In the grievance he alleged that while lying in bed awaiting treatment "a[n] altercation erupts in the ward # 3 room resulting in me being snatched out of my bed, by my ankles, by two (2) officers who (sic) names and faces were not recognizable (emphasis added)." He then states that he was rushed down the hall "and with my hands still cuffed behind me my feet were scooped from under me and my body was lifted or raised up and with such force I was slamed (sic) to the floor landing on my right side. Again knees were applied to my back by an officer while the other officer used what I believe to be his stick and was jabing (sic) me with it . . . and from time to time he would beat me on my cuffed hands with the stick." Thus, at the time the grievance was filed, seven days after the alleged incident, the claimant could not identify the officers who allegedly "snatched" him out of bed. At trial, three years after the incident, the claimant recalled without hesitation that it was Correction Officer Little who snatched him from bed. In addition, the claimant made no mention at trial of another officer's involvement in removing him from the bed and throwing him to the floor or that he was taken into the hallway where he was beaten about the hands and thrown to the floor for a second time.
The testimony of Sergeant LaPier, on the other hand, was consistent with the misbehavior report and investigatory reports, all of which indicate that the claimant was engaged in a violent fight with another inmate in the infirmary. Importantly, Sergeant LaPier testified credibly that the claimant was not beaten and that before he was returned to his cell he was escorted to another area of the medical clinic to be examined for any injuries following the fight. Based on the Court's observation of the demeanor of the witnesses at trial and upon consideration of the inconsistencies in the claimant's version of the events, the Court concludes that the claimant failed to prove by a preponderance of the credible evidence that he was assaulted or that excessive force was used in quelling the altercation which had erupted in the infirmary.

The Causes Of Action For Failure To Provide Timely Medical Care

The State has the fundamental duty to provide adequate medical care to inmates in its prisons without undue delay (Kagan v State of New York, 221 AD2d 7 [1996]). To succeed on a claim for delayed medical treatment it is incumbent on the claimant to come forth with evidence of a breach in prison protocols or other evidence of a deviation from the appropriate standard of care (Trottie v State of New York, 39 AD3d 1094 [2007]). Where such a breach or deviation is established liability does not attach absent competent expert evidence that the delay was a cause of the inmates ensuing medical problems (id.; Lowe v State of New York, 35 AD3d 1281 [2006]). Claimant failed to establish at trial either a breach in protocol or a deviation from the appropriate standard of care in the provision of medical care. Additionally, the claimant failed to establish that any delay in treatment proximately caused or otherwise exacerbated his injuries. As a result, the claim must be dismissed to the extent it alleges the failure to provide timely medical care.

To the extent the claim can be construed as alleging a cause of action for medical malpractice arising out of improper treatment, the claim must be dismissed as the claimant failed to present expert testimony that the care he received deviated from the appropriate standard of care (Lidge v Niagara Falls Mem. Med. Ctr., 17 AD3d 1033 [2005]; Hoffman v Pelletier, 6 AD3d 889 [2004]; Lyons v McCauley, 252 AD2d 516 [1998], lv denied 92 NY2d 814 [1998]).

The Causes Of Action For Violations Of The Federal And New York State Constitutions Claimant's causes of action alleging violations of his rights under the Federal and New York State Constitutions must be dismissed. While an inmate alleging a violation of his civil rights under 42 USC § 1983 may pursue a claim for cruel and inhuman treatment under the eighth amendment to the Constitution[1], the State of New York is not a "person" amenable to suit under this statute (Brown v State of New York, 89 NY2d 172 [1996]; Welch v State of New York, 286 AD2d 496 [2001]). Additionally, although it is settled that a violation of the New York State Constitution may give rise to a cause of action in tort, such a cause of action will be permitted only where it is "necessary and appropriate to ensure the full realization of the rights they state" (Brown v State of New York, 89 NY2d at 189). The right is a narrow one and may not be invoked where there is an alternative avenue of redress (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]). Here, claimant had alternative avenues of redress in the form of a common law cause of action for assault and negligence in failing to provide adequate or timely medical treatment. As a result, those causes of action predicated upon a violation of the Federal and New York State Constitutions must be dismissed.

The Cause Of Action For Wrongful Confinement

Claimant also alleges that the misbehavior report was falsified as part of a conspiracy to cover-up the assault and that he was restricted to his cell and deprived of religious services, hot food and the use of the law library and other privileges as a result. The Court does not find these allegations to be credible. Moreover, the determination of guilt following a Tier 2 disciplinary hearing was affirmed on appeal and remains undisturbed. As a result, to the extent the claimant seeks damages for wrongful confinement, the claim must be dismissed. In addition, the claimant presented no proof at trial with respect to a failure to provide required services or amenities during the period of this confinement.

The Cause Of Action For Intentional Infliction Of Emotional Distress

Lastly, to the extent the claim alleges a cause of action for intentional infliction of emotional distress, no such claim lies against the State (Lynn v State of New York, 33 AD3d 673 [2006]).

In conclusion, the Court finds that the claimant failed to prove his claim by a preponderance of the credible evidence. Accordingly, the claim is dismissed. Let judgment be entered accordingly.

November 8, 2007
Saratoga Springs, New York

Judge of the Court of Claims

[1]. The claim alleges constitutional violations stemming from both the alleged assault and the failure to provide medical treatment.