GREEN v. THE STATE OF NEW YORK, #2008-015-089, Claim No. 113634, Motion Nos.
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.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Shawn Green, Pro Se
Honorable Andrew M. Cuomo, Attorney General
Michael T. Krenrich,
EsquireAssistant Attorney General
November 19, 2008
See also (multicaptioned
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  [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 ). 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 , citing
Zuckerman v City of New York, 49 NY2d 557, 562 ).
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 ).
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 , quoting Wells v State of New
York, 228 AD2d 581, 582 , lv denied 88 NY2d 814 ;
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 ; see also Tarter v
State of New York, 68 NY2d 511 ) . 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,
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).
This Directive also
stated, however, that "[i]nmates may order or receive
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
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 ). This broad
discretion is derived from Correction Law § 112 (1) and § 137 
(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  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
"(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] ). 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
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 ; see also
Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 ).
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
Saratoga Springs, New York
HON. FRANCIS T. COLLINS
the Court of Claims
The court considered the following papers:
Notice of motion dated July 17, 2008;
"Affirmation" of Shawn Green sworn to July 17, 2008;
Memorandum of Law of Shawn Green dated July 17, 2008 with exhibits;
Notice of cross-motion dated August 13, 2007;
Affirmation of Michael T. Krenrich dated August 13, 2008 with exhibits;
Reply "affirmation" of Shawn Green sworn to August 19, 2008.
. 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).
. 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.