|Claimant short name:||ANONYMOUS|
|Footnote (claimant name) :||The caption is marked Anonymous for purposes of publication.|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||Claimant, Pro se|
|Defendant's attorney:||ANDREW M. CUOMO, Attorney General of the State of
By: Frederick H. McGown, III, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 10, 2008|
|See also (multicaptioned case)|
Claimant, an inmate in a State correctional facility, filed this claim on May 16, 2001. Following adjudication of the parties' various motions,(2) the trial of this claim was conducted by videoconference on December 10, 2007, with claimant appearing at Fishkill Correctional Facility in Beacon, New York, defendant appearing at Clinton Correctional Facility in Dannemora, New York, and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony, and defendant offered the testimony of New York State Office of Mental Health (OMH) employee Elaine Amberman and former DOCS employee Nancy Ploof. Numerous documents were offered into evidence by the parties.(3)
The claim seeks monetary compensation for the psychological and emotional distress allegedly suffered by claimant as a result of being placed in double-cell housing. Claimant's theory of liability is that the New York State Department of Correctional Services (DOCS) failed to follow its regulations with respect to the screening and selection of inmates for double-cell housing, and that the alleged failure to perform a screening resulted in injury to claimant. Claimant is in essence pursuing a claim for unlawful confinement, which is a species of the tort of false imprisonment (see Thomas v State of New York, UID #2004-032-048, Claim No. 104288, Motion No. M-67862, Hard, J. [June 16, 2004]). "To establish [a] cause of action [for unlawful confinement] the [claimant] must show that: (1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 , cert den sub nom. Schambarger v Kellogg, 423 US 929 ). Restrictive confinement is privileged to the extent that it is imposed "under color of law or regulation, specifically in accordance with regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
Claimant testified that defendant did not screen him before placing him in a double cell. He asserted that he had been the victim of a sexual assault by an employee at Rikers Island, and that if defendant had performed the requisite screening, it would have known that he was "victim prone" and therefore ineligible for double-cell housing. On September 10, 2000, approximately two months afer he had been received at Upstate CF, claimant filed a grievance complaining that he had not been screened by Upstate CF prior to being placed in double-cell housing and seeking to be removed from double-cell housing (Defendant's Exhibits P and Q). Claimant contended in that grievance that he had not been screened by Upstate CF, and that inmates such as he who have been sexually assaulted are not eligible for double-cell housing (id.). On September 18, 2000, the Inmate Grievance Review Committee (IGRC) responded to claimant's grievance by noting that claimant's double bunking was "DEEMED APPROPRIATE BY DSP. AND MENTAL HEALTH" (Defendant's Exhibit R).(4) Claimant appealed the IGRC response to the Upstate CF Superintendent, who denied the appeal on September 20, 2000 on the ground that claimant's records revealed "no reason that precludes grievant from being double-celled" (Defendant's Exhibit K). Claimant thereafter sent letters to the Medical Review Board of the State Commission of Corrections (Claimant's Exhibit 4), the Upstate CF Superintendent (Claimant's Exhibit 5), and the Commissioner of the Office of Mental Health (OMH) (Claimant's Exhibit 8) complaining that he had not been screened pursuant to DOCS regulations and should not have been placed in double-cell housing due to his history of being sexually assaulted (Claimants Exhibits 4, 5 and 8).
Defendant's testimonial and documentary evidence demonstrate the following. Upon claimant's arrival at Upstate CF on July 12, 2000, Nancy Lee (now known as Nancy Ploof), a registered nurse employed by DOCS, performed a medical assessment as part of claimant's intake into the facility. She completed all or part of several screening forms (Defendant's Exhibits B, C and G), two of which are specifically addressed to an inmate's suitability for placement in a double cell. At trial, Ploof identified defendant's Exhibit G, which she had completed, as the double-cell assessment completed by "medical," and identified Exhibit B, of which she had completed the medical section, as a "SHU Double-Cell Information Sheet" that was initiated by security. Both of these documents were completed on the date of claimant's arrival at Upstate. Exhibit B, which is the form that Upstate CF staff completed in assessing claimant's overall suitability for double-cell housing, specifically recites that claimant was determined not to be "victim prone." Claimant was thereafter assigned to a double cell with another inmate. Claimant remained in double-cell housing at Upstate CF until he was transferred to Southport CF on February 20, 2001. Claimant testified that during his incarceration at Upstate CF he shared a cell with a number of inmates and got into fights with gang members. Claimant was especially distressed that he was forced to share a cell with an inmate who claimant described as being a homosexual.
Claimant has consistently and emphatically contended that defendant is liable to him because it never screened him to determine his suitability for double-cell housing. However, at trial, defendant presented credible and persuasive proof that claimant was, in fact, screened for double-cell suitability on the day he was received at Upstate CF. Thus, the preponderance of the credible evidence at trial does not support claimant's contention that he was not screened. Rather, the preponderance of the credible evidence demonstrates that Upstate CF personnel complied with Upstate CF protocols in screening claimant, and therefore claimant's confinement was privileged.
To the extent that claimant asserts in the alternative that he was not adequately screened because defendant failed to discern that he had been sexually assaulted, his claim cannot be sustained. First, claimant does not identify any record containing a reference to the alleged sexual assault that was, or should have been, considered by Upstate CF staff upon his reception there.(5) Nor does claimant allege that he told Ms. Ploof or any other Upstate CF staff member that he had been sexually assaulted or was victim prone. Thus, there is no basis upon which to find that his screening was inadequate because there is no evidence that defendant should have been aware of his victim prone status. Second, even if defendant was aware that claimant had been sexually assaulted by a staff member at Rikers Island, his reliance on 7 NYCRR § 1701.5, as implemented in Directive 4003 (see Claimant's Exhibit 1), is misplaced because that Directive is applicable to DOCS facilities constructed before 1996 (see 7 NYCRR § 1701.1) and, as testified to by Ploof at trial, Upstate CF was constructed after that date. Moreover, even if that directive were applicable, its pertinent definition of a "victim prone" inmate is one who has "a pattern of being victimized by other inmates" and claimant's allegation of a single instance of sexual abuse by a non-inmate does not satisfy this definition.
The Court finds in favor of defendant. Any motions not previously ruled upon are hereby DENIED. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.
Let judgment be entered accordingly.
April 10, 2008
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
2. See Thomas v State of New York, UID #2004-032-04, Claim No. 104288, Motion No. M-67862, Hard, J. (June 16, 2004) (defendant's motion to dismiss denied); Thomas v State of New York, UID #2004-032-111, Claim No. 104288, Motion No. M-68973, Hard, J. (Nov. 23, 2004) (claimant's motion for preliminary injunction denied); Thomas v State of New York, UID #2007-040-012, Claim No. 104288, Motion No. M-72885, McCarthy, J. (Mar. 16, 2007) (claimant's motion for change of venue denied); Thomas v State of New York, UID #2007-040-038, Claim No. 104288, Motion No. M-73676, McCarthy, J. (July 30, 2007) (claimant's motion to appear by videoconference at facility of incarceration granted).
3. Claimant's Exhibits 1-3, 7 and 8 were admitted into evidence at trial. The Court reserved decision on the admission into evidence of Claimant's Exhibits 4 through 6, 9 and 10 pending the Court's receipt of all of the exhibits. On February 13, 2008 the Court received a package that purportedly contained Exhibits 1 through 10, but Exhibit 6 was not included. In response to correspondence from chambers seeking the missing exhibit, claimant indicated that he was unable to send Exhibit 6, and consenting to the Court rendering a decision without consideration of Exhibit 6. The record was closed on March 13, 2008, the date claimant's correspondence was received.
At trial, defendant objected to Exhibits 4 and 5 on the grounds that such exhibits constituted hearsay, were not authenticated and not relevant, and objected to Exhibit 9 on relevancy grounds. Upon consideration of the documents, Claimant's Exhibits 4, 5 and 9 are now received into evidence over defendant's objections. Defendant had no objection to Exhibit 10, claimant's mental health records, as long as those records were indeed official documents prepared by the Office of Mental Health. The Court is satisfied that they are, and Exhibit 10 is received into evidence.
Defendant's Exhibits A, C-F, H-K and M-S were admitted into evidence at trial, at which time the Court reserved decision on the admission into evidence of Defendant's Exhibits B and G upon claimant's objections that these two exhibits were incomplete. After reviewing the exhibits, the Court finds that the records are indeed complete, and Defendant's Exhibits B and G are received into evidence over claimant's objections.
4. Claimant's medical records confirm that claimant was seen by Office of Mental Health staff on August 2, 2000 and September 7, 2000.
5. While references to the alleged sexual assault are found in the records recorded by staff of the OMH (see Claimant's Exhibit 10), claimant has not demonstrated that those mental health records were, or should have been, in the possession of DOCS at the time he entered Upstate CF.