New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2008-015-089, Claim No. 113634, Motion Nos. M-75288, CM-75376


Synopsis


Claimant's motion for summary judgment was denied. Defendant's cross-motion to dismiss claim for failure to state a cause of action was granted to the extent claim alleged a cause of action for breach of contract arising out of DOCS change in the package restrictions policy.

Case Information

UID:
2008-015-089
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113634
Motion number(s):
M-75288
Cross-motion number(s):
CM-75376
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Shawn Green, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 19, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves for partial summary judgment pursuant to CPLR 3212. Defendant opposes the motion and cross-moves for dismissal of the claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7). The claim alleges the use of excessive force by various correction officers on March 25, 2007, that the issuance of a misbehavior report on that same date was arbitrary and capricious and an abuse of process, that the hearing officer conducting the disciplinary hearing in relation thereto was biased, the disciplinary charges were unsubstantiated and the sanctions imposed were retaliatory. The claim also alleges the defendant failed to provide medical attention for "arches [sic] and pain" following the March 25, 2007 incident and failed to provide claimant with his prescribed medication and diet. Two unrelated causes of action are set forth in a supplemental claim filed on May 24, 2007. The first alleges that claimant was transferred from Great Meadow Correctional Facility on May 10, 2007 and arrived at Southport Correctional Facility on May 11, 2007 without allowing him the four bags of personal property an inmate is permitted. The second alleges a cause of action for breach of contract arising from the conduct of the Department of Correctional Services (DOCS) in unilaterally revising the television policy and package restrictions which had been previously approved by a majority vote of the inmates at Great Meadow Correctional Facility.

It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders, Inc.v Ceppos, 46 NY2d 223, 231 [1978] [citation omitted]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Only when the movant has made this showing does the burden shift to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Here, claimant failed to establish his prima facie entitlement to summary judgment as a matter of law. No evidence was offered in support of claimant's causes of action for excessive force arising out of the incident which occurred on March 25, 2007, abuse of process arising out of the alleged issuance of an arbitrary and capricious misbehavior report on that same date, or the manner in which the disciplinary hearing was conducted (see Arteaga v State of New York, 72 NY2d 212, 221 [1988]).

With respect to the claimant's causes of action for medical negligence or malpractice, the medical records of treatment rendered on March 25, 2007 and thereafter (claimant's Exhibit B) fail to establish a deviation from accepted medical practice or that the claimant was injured as the result of medical negligence in failing to dispense prescribed medications. Under either theory, “ '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is . . . required' to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant's injuries" (Wood v State of New York, 45 AD3d 1198, 1198 [2007], quoting Wells v State of New York, 228 AD2d 581, 582 [1996], lv denied 88 NY2d 814 [1996]; cf. Green v State of New York, UID #2008-044-009, Claim No. 109512 [Ct Cl, June 10, 2008] Schaewe, J.). Here, no such proof was offered.

Additionally, claimant offered insufficient evidence that his prescription medicines were not provided as required by 7 NYCRR 302.2 (e) (1) (iv). This section states that "[a]s soon as possible, but no more than 24 hours after admission, inmates will be permitted . . . prescription medicines as authorized by medical staff . . ." Claimant failed to establish through the tender of admissible evidence that he was prescribed medicines and that they were not provided within 24 hours. Absent such proof, claimant's motion for summary judgment fails for this additional reason as well.

With respect to the alleged negligence of the defendant in transferring the claimant from one facility to another without allowing him the four bags of personal property an inmate is permitted, the claimant failed to establish the negligence of the defendant in carrying out a ministerial duty (see Tango v Tulevech, 61 NY2d 34, 41 [1983]; see also Tarter v State of New York, 68 NY2d 511 [1986]) . Summary judgment on claimant's cause of action for ministerial neglect must therefore be denied.

Claimant also failed to establish his cause of action for breach of contract arising from the alleged conduct of DOCS in unilaterally revising the television policy and package restrictions which had been previously approved by a majority vote of the inmates at Great Meadow Correctional Facility. Claimant established in this regard that when the opportunity for in-cell televisions was approved by a majority vote of the inmates in 1997, they agreed to a package restriction of two packages per year from home in reliance upon the Superintendent's representation that "you may continue to receive packages from approved vendors for all items you receive from family and friends" (claimant's Exhibit E, Interdepartmental Communication from the Superintendent dated July 11, 1997).[1] The 1989 version of Directive 4921 provided guidelines for allowing inmates to own television sets and prohibited the receipt of all "packages by inmates, including those containing foodstuffs from inmate family, friends, or personal packages from other sources . . ." (claimant Exhibit F).[2] This Directive also stated, however, that "[i]nmates may order or receive from approved manufacturer or retailer items of clothing, foodstuffs, toiletries, and any other items . . . which have been approved by the facility Superintendent (claimant's Exhibit F [emphasis added]). Thus, neither this 1989 version of Directive 4921 nor the 1997 memorandum in which the opportunity for in-cell televisions was offered restricted receipt of packages from outside vendors to those ordered by the inmate. However, Directive 4921was amended in 2002 to set forth the following package restrictions:

"An inmate who has the option to own a personal television set may only receive:
1. two packages per calendar year (Jan. - Dec.) from family, friends or other personal sources (these packages may only contain food items and may not exceed 20 pounds); and

2. items ordered directly by the inmate from approved vendors" (claimant's Exhibit F [emphasis added]).

Based on the foregoing, claimant argues that the 2002 amendment of Directive 4921 restricting the receipt of packages from approved outside vendors to those items ordered directly by the inmate constituted a breach of the 1997 offering upon which the inmates approved the in-cell television policy.

The Legislature has granted the Commissioner of Correctional Services broad discretion in the implementation of policies relating to the security and management of state prisons (see Arteaga v State of New York, 72 NY2d at 217; Matter of Baker v Wilmot, 65 AD2d 884 [1978]). This broad discretion is derived from Correction Law § 112 (1) and § 137 [2] (Id.). Correction Law § 112 (1) gives the Commissioner of Correction authority to make such rules and regulations "for the government . . . of each correctional facility, as he may deem proper . . .” Correction Law § 137 [2] similarly directs the Commissioner to “provide for such measures as he may deem necessary or appropriate for the safety, security and control of correctional facilities and the maintenance of order therein.” In accordance with this broad grant of authority, regulations were adopted regarding packages sent or brought to institutions, one of which specifically states:
"(b) This Part applies to inmates housed in facilities wherein the inmate population has elected to possess personal television sets, however, package privileges for such inmates are restricted in accordance with the department's directive on inmate television sets" (7 NYCRR § 724.2 [b]).

Thus, while the Commissioner undoubtedly has the authority to extend privileges to the inmates, he also has the concomitant authority to limit these privileges as he deems proper (see 7 NYCRR § 724.3 [a] [1]). Accordingly, claimant's cause of action for breach of contract arising from the aforementioned change in the package restrictions lacks merit.

Turning to the defendant's cross-motion to dismiss for failure to state a cause of action,

the court is required to “accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Thus, the determination is made by reference to whether “the proponent of the pleading has a cause of action, not whether he has stated one” (Id. at 88). Accepting the facts alleged in the claim as true and according the claimant the benefit of every favorable inference, the Court finds that the claim adequately sets forth causes of action for excessive force, medical negligence and abuse of process. The breach of contract claim, however, must be dismissed.

Based on the foregoing, claimant's motion for partial summary judgment is denied in its entirety and the defendant's cross-motion to dismiss the claim pursuant to CPLR 3211 (a) (7) is granted to the extent of dismissing the claimant's cause of action for breach of contract, and is otherwise denied.


November 19, 2008
Saratoga Springs, New York

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


The court considered the following papers:
  1. Notice of motion dated July 17, 2008;
  2. "Affirmation" of Shawn Green sworn to July 17, 2008;
  3. Memorandum of Law of Shawn Green dated July 17, 2008 with exhibits;
  4. Notice of cross-motion dated August 13, 2007;
  5. Affirmation of Michael T. Krenrich dated August 13, 2008 with exhibits;
  6. Reply "affirmation" of Shawn Green sworn to August 19, 2008.

[1]. After the television policy was approved by a majority vote of the inmates, the Superintendent issued a package policy "clarification" dated March 23, 1998 to make clear that the two authorized packages from family and friends are limited to "foodstuffs only, and the maximum weight per package is twenty (20) pounds" (claimant's Exhibit E).
[2]. The exception to this rule was the receipt of two packages per year containing foodstuffs on the inmate's birthday and a religious holiday of their choice.