“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
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
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.