New York State Court of Claims

New York State Court of Claims

MASON v. THE STATE OF NEW YORK, #2008-030-018, Claim No. 111367


Synopsis


Inmate claim alleging DOCS’ failure to follow regulatory protocols with regard to medical intake procedures for incoming inmates and his own assault by correction officers dismissed after trial. Claimant himself not harmed by any alleged delay in seeing medical personnel, even assuming regulations not followed. Violations of administrative protocols for dispensing medical care to inmates generally at Downstate better addressed in forum other than Court of Claims action for money damages. See e.g. Article 78 Civil Practice Law and Rules. No evidence, other than the self-serving testimony of the claimant, that any force was used by correction officers as they escorted claimant from the receiving area as asserted, or anywhere else on that day. No medical evidence substantiated any injury. No other objective information has been presented to the court to support any cause of action for assault

Case Information

UID:
2008-030-018
Claimant(s):
ROBERT MASON
Claimant short name:
MASON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111367
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ROBERT MASON, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
July 16, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Robert Mason alleges in his claim that defendant’s agents at Downstate Correctional Facility failed to follow their own regulations with regard to medical intake procedures for incoming inmates. More specifically, he alleges that the defendant did not allow claimant access to a nurse when he arrived at the facility as a transfer on or about August 12, 2005, and asked to be seen by a nurse in order to discuss medication prescribed for his “serious medical condition.”[1] [Claim No. 111367 ¶3]. Thereafter he alleges correction officers assaulted him. Trial of the matter was held on July 11, 2008.

Robert Mason testified that on August 12, 2005 he arrived at Downstate as a “holdover” between his transfer from Attica Correctional Facility to Upstate Correctional Facility. He said that since he received (and receives) regular medication for his multiple sclerosis, as well as pain medication for associated conditions, he was anxious to speak with medical personnel when he arrived at Downstate to make sure that everything was in order. He said it was “somewhat of a mandate” that he receive his injections every Monday, Wednesday and Friday, thus whenever he “went from one facility to another” nurses usually saw him upon arrival - as they do other incoming inmates - to check on his medication status.

While in the “draft room - it was either a Wednesday or a Friday”- he informed the correction officer that he would like to see a nurse. In response to claimant’s requests the correction officer said “what do you need to see a nurse for?” and “what is your medical issue?” Claimant did not think that he was obligated to divulge his confidential medical condition to non-medical personnel, and thus would not give the officer specifics as to his condition, and simply repeated that he needed to see a nurse to receive his medication. Two other inmates asked for a nurse as well, claimant recalled. All were refused. The correction officer then “took an attitude” and would not listen to the several requests they made, repeating that they should “shut up.”

Mr. Mason said that Downstate was negligent in failing to allow him to see a nurse upon his arrival. In his “22 years of incarceration” he said, he has
“been in almost every facility. Every time I go from one facility to the next, when I get off that bus and I step into the receiving room and more often than not prior to being placed in a cell I am always seen by medical staff. Not tomorrow, not the next day, but the same day I step off of that van I am seen by medical staff to see what’s wrong with me,” and what is needed medically.


He testified that he did “not see a nurse until the day he got beat up and was taken to an outside hospital in an ambulance, and remained in a wheelchair for the next year and a half.” He said this is “not only unusual, but negligent. Downstate is the only correctional facility that does not allow inmates to be seen by medical staff upon entering into the facility as a new admission.” Because of this failure, he said, “all the other things that transpired,” including his assault by officers in the hallway that night until his removal to an outside hospital. If he had seen the nurse as he asked, he avowed, “I don’t think the correction officers would have been so fast to put their hands on me.”

No other witnesses testified, and no other evidence was submitted on claimant’s direct case.

On cross-examination, Mr. Mason said that he was assaulted by staff as he left the receiving room and was moved to his housing unit that same day. He explained that he asked for a nurse again because he was experiencing chest pains. When asked what the “gist” of his claim was, he agreed that the claim centered on the failure to receive medical attention at the time he requested it, and not any harm that occurred because he did not receive medical attention. He again alleged he was assaulted in the hallway the same night, but could not name the officer who assaulted him. No documentary evidence concerning an assault on August 12, 2005 was presented, in the form of, for example, medical records, an inmate injury form, or a use of force report.

The present claim was sworn to on or about September 6, 2005, and served on the Office of the Attorney General on or about the same date. [Claim No. 111367]. By way of contrast in terms of documentation, in a federal action claimant brought shortly after this claim was filed alleging an assault by correction officers on August 14, 2005 [Exhibit B], the officers involved are named and the use of force is documented in an inmate misbehavior report noting that force was used. [See Exhibit C]. Additionally, memoranda written by claimant that are attached to the federal papers indicate that on August 12, 2005 he was denied access to a nurse, but make no mention of an assault on the same day. [See Exhibit B]. The August 14, 2005 incident that is documented as stated is the only “assault” mentioned in the memoranda attached to the federal papers. [Id.].

After a correction officer testified briefly concerning the use of force incident on August 14, 2005 involving claimant, Mr. Mason acknowledged that he “could not remember” whether he saw medical personnel “on the 13th or the 14th for the chest pains.” He said that he “. . . [knew ] that it was after the first assault.” At the time, he did not stay in the medical unit, but was brought back to his cell. Although on direct examination, he said that the first time he saw medical personnel was when he was “beat so badly” he “ended up in a wheelchair” - he acknowledged that what he meant was that he saw medical personnel after the August 12th assault, returned to housing, and then was assaulted again on August 14, 2005.

Upon review of all the evidence, including listening to Mr. Mason testify and observing his demeanor as he did so, the court finds that claimant has not established an adequate basis for the State’s liability.

It is “fundamental law that the state has a duty to provide reasonable and adequate medical care to the inmates of its prisons,” including proper diagnosis and treatment. Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied 76 NY2d 701 (1990). A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. In a medical malpractice claim, the claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. A medical expert’s testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).

When medical malpractice is not in issue, the State may nonetheless be found liable in negligence if its employees fail to comply with an institution’s own administrative procedures and protocols for dispensing medical care to inmates, and harm flows from such failure. Kagan v State of New York, 221 AD2d 7, 10 (2d Dept 1996). More generally, to establish a prima facie case of negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of plaintiff’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence.

In this case, only the testimony of the claimant has been presented in support of any claim of malpractice. No competent medical evidence was presented, through a treating physician or an expert witness whose opinion was based upon the available medical records, to support a cause of action for medical malpractice. There is no medical evidence on any medical issue and thus no proof that accepted standards of care were not met.

Additionally, from this record there is no indication that the actions of medical caregivers amounted to simple negligence or ministerial neglect. As claimant himself testified, he was not harmed as a result of any alleged delay in gaining access to medical personnel, even assuming that regulatory protocols required that he be seen upon admission to the facility. To the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect is also dismissed.

Finally, claimant has also alleged in his claim that he was physically assaulted by officers on August 12, 2005. Use of physical force against an inmate is governed by statute, regulation, and the attendant case law. The statute provides in pertinent part “. . . [w]hen any inmate . . . shall offer violence to any person, . . . or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, [and] to secure the persons of the offenders . . . ” Correction Law §137(5). As set forth at 7 NYCRR § 251-1.2 (a), an officer must use “. . . [t]he greatest caution and conservative judgment . . . in determining . . . whether physical force is necessary; and . . . the degree of such force that is necessary.” Once an officer determines that physical force must be used, “. . . only such degree of force as is reasonably required shall be used.” 7 NYCRR § 251-1.2(b). The State may be liable for the use of excessive force by its employee under the concept of respondeat superior. See Jones v State of New York, 33 NY2d 275, 279 (1973); Court of Claims Act §8.

Resolving issues of credibility is the province of this Court as the trier of fact. LeGrand v State of New York, 195 AD2d 784 (3d Dept 1993), lv denied 82 NY2d 663 (1993). Based upon a preponderance of the credible evidence, the claimant has failed to establish that he was assaulted by anybody on August 12, 2005 as asserted in the claim before this court.

No use of force report appears to have been filed. [See 7 NYCRR § 251-1.3]. There was no evidence, other than the self-serving testimony of the claimant, that any force was used by correction officers as they escorted claimant from the receiving area as asserted, or anywhere else on that day. No medical evidence substantiated any injury, nor were any injuries described by claimant in any event. No other objective information has been presented to the court to support any cause of action for assault on August 12, 2005 as asserted in the claim. While there was, apparently, a use of force incident on August 14, 2005, claimant did not allege such incident in the claim before this court, nor did he testify with any particularity concerning the event.

The court cannot help but note that what claimant appeared most concerned about was what he perceived as violations of administrative protocols for dispensing medical care to inmates at Downstate. As such, a claim for money damages in the Court of Claims is not the proper forum to address such concerns. See e.g. Article 78 Civil Practice Law and Rules.

Accordingly, the defendant’s motion to dismiss for failure to establish a prima facie case, upon which decision was reserved at the time of trial, is hereby granted, and claim number 111367 is dismissed in its entirety.

Let judgment be entered accordingly.

July 16, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1].All quotations are to trial notes or audio recordings unless otherwise indicated.