New York State Court of Claims

New York State Court of Claims

SUMPTER v. THE STATE OF NEW YORK, #2008-030-024, Claim No. 110098


State liable. Pro se inmate claimant established that correctional personnel failed to place him in a lower bunk within a reasonable period of time after medical personnel's recommendation, without any explanation as to why such placement was not implemented, and as a result of such failure claimant fell and was injured, a situation that was clearly foreseeable under the circumstances.

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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
October 3, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Jon Sumpter alleges in Claim number 110098, among other things, that Defendant’s agents failed to provide him with adequate medical care while he was incarcerated at Downstate Correctional Facility, and negligently caused him further harm by assigning him the top bunk in a cell, from which he fell and suffered injury on or about November 17, 2004
, despite a documented medical condition requiring that he be placed in a bottom bunk. Trial of the matter was held on September 12, 2008.
Mr. Sumpter testified that in August 2000 - when he was first received at Downstate - he advised personnel that he “had a deformity and serious problem with his knees”
as a result of a childhood injury in a car accident. He said that in the childhood accident his leg had been broken in two places, with compound fractures at the knee and shin. A physical examination taken when he was received reflects his report to correctional personnel. [Exhibit 1]. Similar complaints were voiced and recorded in his ambulatory health record [AHR] when he arrived later at Five Points Correctional Facility from Sing Sing on October 20, 2000, when he informed the nurse and requested an ace bandage “for his left knee deformity” (because it “snaps and gives out on me”). [Exhibit 2]. The AHR from Five Points also contains a notation that no bottom bunk placement was required. [Ibid.]. Claimant testified he was given an ace bandage at that time.
While an inmate at Five Points “over time,” Mr. Sumpter said he experienced knee discomfort and “give outs” of his knees as well as severe pain as he climbed up and down to the top bunk. Medical personnel examined him, and utilized x-rays to diagnose his knee condition. He was issued a “permanent knee brace, with a special device inside of it to lift [his] knee-cap back up into place, and help alleviate pain and give outs, and then . . . [he] was issued a bottom bunk permit because a medical condition existed with . . . [his] knees.” Among the records submitted are a medical permit for a brace issued on March 22, 2002 at Five Points that contains no expiration date, as well as an open ended request for bottom bunk placement dated June 12, 2002 directed to “movement control,” indicating that Mr. Sumpter “must be moved to a lower bunk at your [convenience]. As a medical condition exists.” [Exhibit 3].
He developed “another injury with his feet” at sometime during his incarceration at Five Points. He made “numerous sick call trips” because of severe pain. After examination by a podiatrist, x-ray evaluations, prescription of medication and of special footwear, nothing helped. He then “agreed to have surgery” on his right foot, to be followed by surgery on his left foot. He was diagnosed as having a “painful tailor’s bunion and nerve compression.” He was “removed from all work programs, on hold for a period of thirty days until the surgery” at Five Points. In an AHR for September 30, 2003 it is noted
“wants out of program because of feet pain. Surgery on bunion is approved awaiting scheduling. Medical hold [no] work [for] 30 days.” [Exhibit 4].

“Within that thirty days, however,” he was “transferred to another facility” (to Downstate). From the documents submitted, such transfer appears to have occurred on or about October 17, 2003. [Ibid.].
Downstate Correctional Facility
Although it was not totally clear from the record initially, it appears that claimant himself had sought placement in the cadre program, based on its location at Downstate, affording him greater opportunity for visits by his family. Mr. Sumpter described the cadre program as an “honor facility”, saying officials would pick participants based on a good disciplinary record and said that “the benefit is being closer to home.”
His having sought out the transfer to Downstate was confirmed on cross-examination. Part of gaining assignment to the cadre program at Downstate apparently involved signing a waiver of placement in a double cell. Claimant said that he signed such a waiver both at Five Points before his transfer - and referenced a form that is dated March 7, 2002 - and upon his arrival at Downstate, as shown in a form witnessed by Counselor Cruz on November 13, 2003. [Exhibit 17]. Both forms only make reference to placement in a double cell, and say nothing about assignment to the top or bottom bunk. [See id.].

Directive No. 4003
, entitled Double Cell Housing, and revised as of August 30, 2001, was submitted. [Exhibit 9]. It sets forth the requirements concerning medical screening of those who are being considered for placement in double-cell housing by the Deputy Superintendent of Security or his or her designee. Once the names of those proposed are provided to the Health Services Director or his or her designee, “[t]he facility health staff shall conduct a medical records review prior to possible double-cell assignment and advise the Deputy Superintendent of Security or designee of the existence of a medical condition that would preclude double-cell
housing, [or] require placement in a bottom bunk bed . . .” [Ibid.]. The form required for such assessment is attached to the directive, and includes a spot for “known medical indications requiring . . . [the inmate] to be placed in a bottom bunk bed.” [Ibid.]. This screening form was apparently completed on October 20, 2000 at Five Points, answering in the negative as to whether any medical conditions required his placement in a bottom bunk [see Exhibit A], and - at least based on the record here - never completed again.
Once at Downstate, although Mr. Sumpter told the officer he could not climb up and down the bunk beds because of severe pain in his foot, he was assigned to the top bunk in cell 27. Such report is noted in a contemporaneous logbook entry. [Exhibit 5]. Claimant testified that he suffered from chronic and substantial pain from climbing in and out “on the bunk bed headboards,” testifying that no ladders were supplied. He identified a diagram drawing by Corcraft Products of bunk beds complete with dimensions as depicting the type of bunk bed structure he was required to ascend and descend without a ladder. [Exhibit 21]. Notably, the distance from the floor to the top bunk is at least six (6) feet according to the dimensions provided. [See id.].
On October 17, 2003, Mr. Sumpter went to “emergency sick call” at the Downstate facility hospital, and when he returned he was “kept on medical keeplock for three days” until he was “able to see a doctor on the Monday.” The AHR nurse’s note for October 17, 2003, reports claimant’s complaint that he “can’t climb to top bunk due to bunions on feet [and left] knee pain [complains of] pain base of both little toes. No swelling, redness noted [Left] knee - no swelling noted.” [Exhibit 19]. The log notes from the housing unit for October 17, 2003 confirm his visit to the facility hospital,
and his return to the block for placement on medical keeplock for three (3) days until he could be more thoroughly examined, as well as his continued placement in the top bunk. [Exhibit 5].
On Saturday, October 18, 2003 Mr. Sumpter said he “had a problem with [his] knee” because of his “right foot catching while . . . [he] tried to climb down; his left knee gave out trying to bear all of his weight,” causing him to “slip and hurt . . . [his] back.” Nonetheless, he had “no choice but to keep climbing,” because he needed to wait until Monday to see the doctor. Mr. Sumpter said that he “stayed in bed for the weekend, climbing down only to use the bathroom, but with no shower or food.”
On Monday, October 20, 2003 he was “examined by the doctor.” He said he was “re-approved for bottom bunk” placement, and “was given something for his new back injury.” The indication that a letter to Gordon Lord, the Assistant Deputy Director for Programs was being written requesting lower bunk placement for medical reasons is noted in the AHR for October 20, 2003. [Exhibits 4 and 19]. A copy of the memorandum to Mr. Lord from physician’s assistant Paul Wilson, dated October 21, 2003, was also submitted. [Ibid.]. The memorandum states:
“This inmate was recently transferred from Five Points C.F. to DCF 4A27(T). He has a few medical conditions related to his lower extremities and back. Recommend he be provided low bunk only. Thank you.” [Ibid.].

Additionally, Mr. Sumpter said that he saw Counselor Cruz, who also wrote to Gordon Lord on October 22, 2003 saying claimant was not suitable for the “cadre program.” In the notes made by Counselor Cruz concerning the interview with claimant, dated October 20, 2003, it is stated in part “Given the nature of the Cadre program,
it is questionable whether this individual can adequately function in a work facility.” [Exhibit 4]. The memorandum to Lord as well as the counselor’s notes indicates that claimant reported that he was on a medical hold at Five Points, and reports also his expectations that he would not be required to double bunk (and thus risk placement in the top bunk) in the Cadre program, and would receive the medical care he was due to receive at Five Points. [Ibid.].
There are sick call visits recorded in the log notes for November 6, 2003 [Exhibit 11], November 13, 2003 [Exhibit 12], and November 20, 2003 [Exhibit 13], some of which are included in the AHR notes submitted, but not all involving his knees, feet and back. [Exhibit 4]. A grievance dated November 11, 2003 asking that he be placed in a bottom bunk at Downstate in view of the medical recommendation states that claimant had
“. . . seen the doctor here at downstate, he reviewed my medical records and my bottom bunk permit from the last facility that I came from, he told me that he’s putting me in for a bottom bunk here at downstate and that was about a month ago. I’m waiting for surgery on my foot. I had surgery on both of my knees already. I slipped and fell once already climbing up and down those beds. I was never suppose[d] to be on a top bunk . . . ” [Exhibit 7].

The Inmate Grievance Review Committee [ IGRC] agreed that the “medical directions should be followed as soon as possible” and that claimant should be moved to a single cell, in the undated initial decision claimant “agree[d]” with by his signature on the form dated November 17, 2003. [Ibid.]. Indeed, the investigative notes attached to the IGRC decision, dated November 14, 2003, states that the physician’s assistant had recommended the bottom bunk, but that the recommendation was “under review.” [See ibid.]. The Superintendent’s determination accepting the grievance, dated December 2, 2003 notes that since filing the grievance claimant had been moved; and the State Central Office Review Committee [CORC] “upheld” the Superintendent’s determination on March 24, 2004. It is noted that the alleged fall that is the subject of this claim also occurred before this grievance concerning his placement reached the Superintendent and State level of review.
On cross-examination, Mr. Sumpter confirmed that he had requested the transfer to Downstate as a cadre inmate and that he knew that as a transfer to cadre he would be required to live in a double bunk cell. He would not agree, however, that he knew before he arrived that the practice in double bunking was that the arriving inmate be placed in the top bunk. He learned of that “later,” when Mr. Lord “informed” him. He also acknowledged that before November 17, 2003, he did not request a transfer from the facility although from the time he arrived he had learned that he would be assigned to the top bunk. He reiterated, however, that it was his understanding that he would be given a lower bunk, based on the recommendations from medical personnel, and his complaints to the officers.
Paul Wilson, the physician’s assistant (PA) who examined claimant at Downstate on October 20, 2003 testified. PA Wilson confirmed that he had concluded at the time that claimant should be placed in a bottom bunk, based on the physical observations he made and claimant’s medical complaints. Shown the AHR notes for October 20, 2003, he interpreted his own handwriting and read:
“Transfer from Five Points Correctional Facility. Status post right knee arthroscopy 1989, status post left knee surgery many years ago; deformity left knee, exostosis (‘I put a question mark’) right lateral foot, reportedly awaiting surgery for tailor’s bunion right while at FPCF (five points).” [See Exhibit 19].

PA Wilson confirmed that he noted that he wrote to Mr. Lord for reapproval of claimant’s placement in a bottom bunk, and identified the October 21, 2003 memorandum recommending same. [See ibid.]. When asked why he mentioned claimant’s back in the memorandum to Lord, he could not remember why he wrote that claimant had a back issue. He did not remember specifically telling claimant that he did not understand why claimant was in the cadre program given his medical issues, but conceded he might well have said such a thing, given that his notes indicate that claimant presented with multiple medical conditions, and the cadre program is designed for inmates who can do physical work. PA Wilson said: “With these problems . . . it would be confusing to me for [his] being in the program with these problems.”
Further review of the AHR records shows there are notations by PA Wilson on October 23, 27 and 28, 2003 indicating that he had asked that claimant be brought to the clinic. [Exhibit 19]. He could not say why claimant was not brought on those occasions. When he saw claimant on November 7, 2003 it was to sign a consent form for podiatry to his right foot [ibid.].
PA Wilson could not recall whether he had followed up on his initial request that claimant be placed in a bottom bunk, nor was he familiar with any policy in cadre whereby inmates new to the program were placed in the top bunk, and then “worked their way down to the bottom bunk.” He did not know whether he spoke to Lord about claimant before November 17, 2003. Nor did he have an opinion as to what Mr. Lord’s actions or motivations were with regard to implementing any request for assignment to a lower bunk.
Mario Malvarosa, the Downstate Correctional Facility Medical Services Director, testified briefly. Although it was not he who examined claimant on November 17, 2003 after his fall, he interpreted the notes in the AHR for that day for the Court. [Exhibit 14]. He read:
“slipped this AM. claims low back pain while getting to top bunk Lumbosacral symmetric, full range of motion, no point tenderness. Analgesic balm issued, continue Motrin 400 three times per day.”

Dr. Malvarosa testified that he “investigated the grievance” claimant filed concerning the November 17, 2003 visit - explaining that he “looks into” all medical grievances - but was not the physician who saw him.
Physician’s assistant Ellen Yousseff testified concerning her examination of claimant on November 21, 2003. Reviewing the AHR notes for that day, she read:
“complains of persistent lower back pain. (See note from above).
Decreased range of motion in lower back with active para spinal spasm right lumbar region. Continue Motrin 800 milligram three times per day, and must be in a bottom bunk.” [Exhibit 14].

PA Yousseff testified that she “called movement and control and spoke to Mr. Lord.” She gave claimant a permit on November 21, 2003 to show to the unit “in case there were any problems” in obtaining a lower bunk. The permit stated “must be moved to bottom bunk indefinitely.” [Exhibit 4]. She testified that she felt that she needed to call Mr. Lord because PA Wilson had already asked for a bottom bunk for the claimant on October 21, 2003, but as of November 21, 2003, claimant was still not in a bottom bunk.
When asked, Yousseff agreed that claimant would not have been picked for placement in cadre given his physical record. She said she was “not familiar with people with physical disabilities coming into cadre.”
When she examined claimant three (3) days after the claimed fall the injuries to his back she found were “consistent with a fall from a top bunk.”
On cross-examination PA Yousseff agreed with counsel’s statement that the “only basis for how any back injuries occurred was claimant’s report,” and further agreed that the recommendation by PA Wilson for claimant’s transfer to a lower bunk is just that: a recommendation. She confirmed that “movement and control” makes the decision on whether an inmate may have a lower bunk. She said that “Wilson’s recommendation is given a lot of weight;” but he is not the one who decides placement. Other than the phrase “low bunk only” she could not point out where PA Wilson actually indicated that such placement was “medically necessary” in his recommendation of October 21, 2003.
On redirect examination, Yousseff confirmed that she would have recommended Mr. Sumpter’s placement in a bottom bunk, given his medical presentation as a person with, as claimant phrased it, “multiple medical issues in both knees, a history of arthoscopic; and someone waiting for surgery on transfer.”
No other witnesses testified and no other relevant evidence was submitted, although the additional documents submitted by claimant, including his closing statement [see Exhibit 24], have been read and given what weight they should be accorded.
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). 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 cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. 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).
If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State’s employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony. Coursen v New York Hospital-Cornell Medical Center, 114 AD2d 254, 256 (1st Dept. 1986). Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution’s own administrative procedures and protocols for dispensing medical care to inmates. Kagan v State of New York, 221 AD2d 7, 10 (2d Dept 1996). “Under both [medical malpractice and medical negligence] theories . . . claimant must establish that the negligence of the State or the State’s deviation from the accepted standard of care was the proximate cause of the claimant’s injuries (see Bennett v State of New York, 31 AD3d 1069, (2006); Kagan, 221 AD2d at 11, 16-17).” Lowe v State of New York, 35 AD3d 1281, 1282 (4th Dept 2006).
Finally, 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 claimant’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 cause of action for medical malpractice. Although claimant did submit medical records, no treating physician - or expert witness whose opinion was based upon the available medical records - testified in support of the elements for establishing a cause of action for medical malpractice. There is no proof that accepted standards of care were not met, and that any deviation from accepted standards proximately caused claimant harm. Accordingly, any portion of the claim that is read to assert a cause of action for medical malpractice is dismissed.
With respect to causes of action for negligence or ministerial neglect, however, there is some suggestion that the actions of State personnel may support such a cause of action, at least with regard to the failure to timely implement a medical recommendation to place claimant in a lower bunk, resulting in the reasonably foreseeable consequence that claimant would fall. See Coursen v New York Hospital, supra.; Kagan v State of New York, supra.
Quixotically, because of the setting in which medical care is rendered - namely maximum security correctional facilities - security issues may subsume medical ones, informing the process by which an inmate is selected for bunk placement in a cell. Decisions by medical personnel charged with making recommendations concerning medical issues are subject to review by non-medical, “movement and control” personnel in a correctional facility setting. Such discretionary determinations by the movement and control personnel could be afforded qualified immunity, since discretionary non-judicial actions are entitled to qualified immunity, except if the actions were taken in bad faith or without a reasonable basis. See generally Arteaga v State of New York, 72 NY2d 212 (1988). Tarter v State of New York, 68 NY2d 511 (1986); Tango by Tango v Tulevech 61 NY2d 34 (1983). There must be some showing, however, that reasoned discretion was actually exercised. The mere fact that a decision was made does not establish that the defense of qualified immunity obtains, absent some showing of the reasons for such decision. See Collins v State of New York, UID # 2007-029-040, Claim No. 100508-A (Mignano, J., October 5, 2007). Like the protections of the medical judgment rule, for example, [see Stanback v State of New York, 163 AD2d 298 (2d Dept 1990)],
claiming that a decision is protected by qualified immunity requires more than asserting that a decision was made at some point, without any indication as to its basis. See also Haddock v City of New York, 75 NY2d 478, 485 (1990);
cf. Mon v City of New York, 78 NY2d 309, 315 (1991).”

Since the defendant did not call a witness from the department who made the determination as to whether claimant should be placed in a bottom bunk, the defense that the decision was made as a result of reasonably exercised discretion cannot be sustained on this record, and immunity does not apply. Haddock v City of New York, supra. The court is left to speculate as to why this claimant was not removed from top bunk placement despite his medically indicated need to be placed in a lower bunk.
What is in the record is that over the years of Mr. Sumpter’s incarceration he had presented with multiple medical conditions consistently involving his feet and knees. He had been prescribed knee braces, orthopedic shoes, analgesics, and sneakers, among other items related to those complaints, and had been recommended for a lower bunk placement at Five Points because “a medical condition exists.” [See Exhibit 3]. Notations in the AHR at Five Points reference an “audible click” in his left knee, a “deformity” in his left knee, and observable “locking” in both. [Ibid.]. Sometimes placement in a lower bunk was required by medical personnel in the history, and sometimes it was not. [Ibid.].
The last notation in the medical record from Five Points on September 30, 2003 states that Mr. Sumpter was due to have surgery on a bunion. [Exhibit 4].
Typical of the constant movement of inmates from correctional facility to correctional facility - and certainly typical of Mr. Sumpter’s various placements shown in the record [see Exhibit 18] - before the surgery, claimant was transferred to another correctional facility, apparently pursuant to his request to participate in the cadre program at Downstate. Although a medical evaluation by a nurse was made on October 17, 2003, resulting in his being in medical keeplock and his referral for further examination, it does not appear that evaluation of his housing placement in a double cell utilizing the form required by the regulations [see 7 NYCRR §1701.9] was done. The medical records submitted show that the medical screening form utilized during intake procedures at a correctional facility was last completed for this claimant in October 2000 [Exhibits A and 2], and in the intervening years lower bunk placement had been afforded based upon medical issues. Despite the failure to complete the form, medical personnel performed an initial review by the nurse on October 17, 2003, and then a more complete examination on October 20, 2003. It is unclear whether the medical staff had the benefit of access to the complete medical history at that time. [See generally 9 NYCRR §7651.19]. Perhaps if they had, that department might have been more proactive in implementing its own recommendation. Regardless, it is the failure of the non-medical personnel to implement the medical recommendation for lower bunk placement that is most troubling here.
Upon review of all the evidence, including listening to Mr. Sumpter testify and observing his demeanor as he did so, as well as the testimony and demeanor of the two physician’s assistants who physically examined claimant, the Court finds that claimant has established an adequate basis for the State’s liability. Claimant’s testimony was largely credited. He impressed the Court as likely an irritating individual, whose righteous tone and multiple medical complaints might obscure the legitimate medical complaints among the less substantial ones.
More significantly, it was established that medical personnel at Downstate determined that a lower bunk placement was necessary and requested same, and for no disclosed reasons lower bunk placement was not implemented by non-medical personnel, and claimant remained in the top bunk of his cell at least six feet above ground level without any means for ascending and descending provided for one (1) month after the recommendation.
PA Wilson’s recommendation for lower bunk placement [see Exhibit 19] is not the equivocal statement suggested by defendant’s counsel in his questioning of PA Yousseff, but rather states the medically indicated requirements for bunking this claimant. Notably, PA Wilson himself was not asked by defendant if the language he used - “lower bunk only” - was meant to convey urgency, indeed he was not cross-examined at all.
In addition to complaints to medical staff, claimant complained to correction officers and filed a grievance about his top bunk placement; complaints that continued for one (1) month from the initial recommendation by medical personnel, until three days after his fall when it seems he was finally placed in a bottom bunk, and/or transferred. [See Exhibit 10]. Indeed, he testified without contradiction that he fell at least once before the subject fall, the first weekend he was there before seeing PA Wilson. A reasonably foreseeable fall followed on November 17, 2003 upon the failure to place claimant in a lower bunk, which fall is confirmed by claimant’s uncontradicted and credible testimony, together with the only medical testimony on the issue to the effect that the observed injuries were consistent with a fall from a top bunk described by PA Yousseff. Claimant has established that defendant’s agents failed to place him in a lower bunk within a reasonable period of time after medical personnel’s recommendation, without any explanation as to why such placement was not implemented, and as a result of such failure claimant fell and was injured, a situation that was clearly foreseeable under the circumstances.
Based on the foregoing, defendant is clearly liable for injuries claimant may have suffered as a result of his fall on November 17, 2003. There is no basis for deciding that there was contributory fault on the part of claimant on this record.
Accordingly, the Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability. Trial on the issues of damages will be scheduled thereafter, as soon as it is practicable.

October 3, 2008
White Plains, New York

Judge of the Court of Claims

[1]. Although the written claim indicates that he fell on November 17, 2004, from the context it is clear that the claimant’s alleged fall occurred on November 17, 2003. Testimony confirmed this as well.
[2]. All quotations are to audio recordings or trial notes unless otherwise indicated.
[3].The documents claimant submitted contain some confusing overlap that tends to show that getting “closer to home” had been a concern of Mr. Sumpter’s for some time, as well as placement in single cells, or bottom-bunk assignments, and that before (or between) the placements discussed at trial, there were also placements at Mid-Orange Correctional Facility, Shawangunk Correctional Facility, Coxsackie Correctional Facility, Auburn Correctional Facility, Attica Correctional Facility and Green Haven Correctional Facility, in August 2001, March 2002, June 2002, August 2002, April 2003 and May 2003 respectively. [See Exhibit 18].
[4]. Another grievance dated November 26, 2003 described his being taken out of the cadre program because, ostensibly, he would not sign a double bunk waiver form. [Exhibit 16]. Mr. Sumpter spent some time at trial establishing that he did sign these forms. [See also Exhibits 6 and 10]. Again, the waiver forms are silent as to placement in the top or bottom bunk in any event.
[5]. This directive is also part of the official regulations published for the New York State Department of Correctional Services. [See generally 7 NYCRR Part 1701].
[6]. A health screening directive dated February 20, 2004, requiring that inmates be screened by a registered nurse within 24 hours of arrival at a DOCS facility, was submitted without objection. [Exhibit 8]. There was no indication that any different directive - containing different requirements - was applicable at the time of the incident. This directive, too, is derived from state regulations codified under 9 NYCRR Part 7651 concerning provision of health care services.
[7]. Directive #0069 entitled Downstate Correctional Facility, and dated August 7, 1996 contains the facility’s classification, and in a “functions” category indicates that the facility “. . . has a cadre of inmates assigned to the facility for maintenance and program support . . . [who are offered] a limited range of academic education, vocational training and volunteer services.” [Exhibit 20]. In the “criteria” category, the directive notes that “[i]nmates in need of serious or extensive health care, or mental health services, may be excluded from placement as cadre.” [Id.]. Under “physical environment,” the directive notes that “[h]ousing units at Downstate . . . consist of cells with a limited number of dormitory spaces.” [Id.]
[8]. Meaning the AHR note from November 17, 2003, the day of the fall alleged herein.
[9].“. . . [T]he State may not insulate itself under the professional medical judgment rule, since it did not exercise its judgment pursuant to a careful examination of the claimant’s condition . . .(citation omitted)”, in claim involving an over three (3) year delay in diagnosing torn meniscus and ligament injury after a fall on wet stairs.
1[0].“We need not determine whether the City’s retention of Johnson at the Parkside Playgound would be subject to absolute or qualified immunity because the City’s argument for any immunity here has a fundamental flaw. The difficulty with the City’s contention that it is entitled to a cloak of immunity for the discretionary decision to retain Johnson in his status is that there is no evidence that, prior to the rape, the City in fact made any such decision or exercised any such discretion. This is not a case of mere error of judgment of City officials in choosing to retain a WREP participant in his work assignment after learning of his criminal record. There is no indication that, before the attack on plaintiff, the City made any effort to comply with its own personnel procedures for employees with criminal records, and no indication that it made a judgment of any sort when it learned that Johnson both had a criminal record and lied egregiously about it, the key fact is that no City employee in the relevant time frame weighed the impact of Johnson’s record on his work assignment or made a judgment that he should be retained at the Parkside Playground.”
[1]1.“. . . [V]iewing the record as a whole, it is evident that the claim for negligently hiring Shankman, despite the known unfavorable information as to his character, essentially arises from a misjudgment that was discretionary. It is in this crucial respect that the case before us differs from Haddock v City of New York (supra) where the ‘key fact [was] that no City employee in the relevant time frame weighed the impact of [the employee’s] record on his work assignment or made a judgment that he should be retained at the Parkside Playground’ . . .”
1[2]. For example, on May 30, 2002 the AHR notes that the nurse discussed bottom bunk placement with the physician’s assistant, and claimant did not “meet BBP requirements.” Then on June 12, 2002, the patella problems and locking knees are noted and claimant was referred for x-rays; and a request for bottom bunk placement was made.
1[3]. Cirino v State of New York, UID # 2002-005-004, Claim No. 90825 (Corbett, J., July 9, 2002); cf. Levin v State of New York, 32 AD3d 501 (2d Dept 2006); Brown v State of New York, UID # 2003-016-020, Claim No. 103794 (Marin, J., March 11, 2003).