New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2008-044-009, Claim No. 109512


Inmate awarded damages for prison’s withholding of prescription medication and for lost property. Other causes of action dismissed.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 10, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, filed this claim alleging that he was denied the opportunity for recreation while incarcerated at Southport Correctional Facility (Southport) due to wearing a braided hairstyle, that he was denied a diabetic diet for six days upon his transfer to that facility, and that he experienced a delay in receiving his prescription medications (specifically Clotrimazole and Geri-Hydrolac 12 [Lac-Hydrin Lotion]).[1] Claimant thereafter filed a “supplemental” claim adding two bailment causes of action identified as facility claim # 630-029-04, for property allegedly lost during claimant’s transfer from Green Haven Correctional Facility (Green Haven) to Southport, and facility claim # 630-054-04, for a Mother’s Day card which was returned opened and damaged. Defendant answered and asserted various affirmative defenses. A trial in this matter was conducted on March 12, 2008 at Elmira Correctional Facility

. At trial, claimant moved[2] to amend the claim to include the previously dismissed cause of action for failure to provide barber services in compliance with the clipper permit (see Green v State of New York, Ct Cl, Feb. 4, 2008, Schaewe, J., Claim No. 109512, Motion No. M-74167 [UID # 2008-044-504]). Because defendant would be prejudiced in its defense if that cause of action was added immediately before trial, claimant’s motion was denied.

With respect to his cause of action for denial of recreation, claimant alleges that he was denied recreation as a result of having braids in his hair, in violation of Southport’s policy as set forth in a facility memorandum from P. Chappius, Jr. dated October 2, 2003. That memo indicated that inmates who had braids in violation of the Department of Correctional Services (DOCS) Grooming Standards would be allowed to take recreation if DOCS staff conducted a “frisk” of the braids[3]. Claimant testified that he filed a grievance requesting that inmates with braids be allowed to attend recreation. The investigative report prepared as part of the review process in response to that grievance indicated that “there [was] no record of grievant being denied exercise.” The report also indicated that claimant was “advised that this memo does not exist. A new memo states a direct order will be given to remove unauthorized braids,” and non-compliance would be addressed through the disciplinary system.

The grievance was denied by the Inmate Grievance Review Committee (IGRC) and affirmed by both the Superintendent and the Central Office Review Committee (CORC).[4] In upholding the determinations of IGRC and the Superintendent, CORC specifically stated that cornrow braids were the only braids allowed (per the directive) and that such braids could only extend to the hairline, or, in other words, any cornrow braids extending beyond the hairline would not be allowed.

Claimant testified that the policy that was enforced by the correction officers was different from the policy as written in the memo. Claimant testified that he was first denied recreation on or about April 11, 2004 (the date that he filed the grievance),[5] and was thereafter denied recreation between 21 and 28 times. Claimant denies that his hair was longer than shoulder length, and thus he believes that he was denied recreation in violation of defendant’s own policy. At the close of proof on this cause of action, claimant requested and the Court directed that defendant produce copies of the logbook for the first month that claimant was incarcerated at Southport.[6]

The logbook entries for the period April 9, 2004 through May 13, 2004 reveal that claimant was assigned to Cell B-4-11 at approximately 4:00 p.m. on April 9, 2004, and thereafter on April 21, 2008, he was transferred to Cell A-8-19. Claimant participated in recreation on 13 of those 34 days, and refused recreation on 15 days. For the six remaining days, there is no designation in the logbook grid for claimant’s cell, so it is unclear whether claimant received recreation on those days.

As a general rule, “[a]n inmate shall be permitted to exercise outside of his or her cell for at least one hour daily” (7 NYCRR 1704.6 [b]). However, the Court finds that claimant has not met his burden of establishing that defendant denied him recreation on any of the dates between April 9, 2004 and May 13, 2004. Although the logbook entries establish that claimant did not participate in recreation on at least 15 days, those entries support the finding that it was claimant’s choice to not attend recreation, rather than having been deprived of the opportunity by defendant. Claimant’s cause of action for denial of recreation is dismissed.

In this claim, claimant also asserts two causes of action for medical negligence. Claimant alleges that: 1) there was a delay in providing him with his prescription medications, and 2) there was a delay in providing him with a diabetic diet.

Claimant testified that in February 2004 he was prescribed a treatment plan which included the use of Clotrimazole and Lac-Hydrin Lotion both for athlete’s foot and for dry, cracked skin. During his transfer from Green Haven to Southport, he turned over the medications to the transport officers. Claimant testified that when he arrived at Southport on April 9, 2004, he participated in a health screening and medical orientation, where he notified Nurse Miller that he had been using the Clotrimazole and Lac-Hydrin. However, Nurse Miller did not provide claimant with these medications, but noted that “NP [would] evaluate for need” [Claimant’s Exhibit 9]. Claimant alleges Nurse Miller’s conduct in withholding those medications was in violation of the Health Services Policy Manual, and caused him to suffer severe itching and cracked skin. Claimant testified that Dr. John Alves examined him on April 14, 2004 and prescribed Lac-Hydrin which he received shortly thereafter. Claimant testified, without contradiction, that at the same time, Dr. Alves also prescribed Eucerin cream for him. Claimant testified that he did not receive the Eucerin until May 28, 2004.[7]

Peter Braselmann, a facility physician, testified that Clotrimazole, Lac-Hydrin, and Eucerin all were over-the-counter medications used to treat athlete’s foot and cracked, dry feet.[8] Dr. Braselmann acknowledged that upon transfer into a different correctional facility, an inmate should immediately be provided with all medications which he was taking prior to the transfer. Dr. Braselmann testified that claimant is diabetic and, in general, diabetics are highly prone to foot problems and infections. Dr. Braselmann specifically stated that without the Clotrimazole, Lac-Hydrin, and Eucerin, claimant’s itchy, dry, and cracked skin problem would persist. However, Dr. Braselmann opined that claimant would not suffer any long-term effects having gone without the medications for only six days. Dr. Braselmann specifically denied that the lack of medications caused claimant’s condition to become chronic.

There is a subtle distinction between medical negligence and medical malpractice. The Court of Appeals has recognized that although a medical provider “in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice” (Bleiler v Bodnar, 65 NY2d 65, 73 [1985]. When the allegedly wrongful conduct “constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician,” the cause of action is for medical malpractice rather than negligence (id. at 72; see Scott v Uljanov, 74 NY2d 673 [1989]). “By contrast, when ‘the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [provider’s] failure in fulfilling a different duty,’ the claim sounds in negligence” (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] quoting Bleiler v Bodnar, supra, at 73). However, “[u]nder 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 [2007], quoting Wells v State of New York, 228 AD2d 581, 582 [1996], lv denied 88 NY2d 814 [1996]; see also Tatta v State of New York, 19 AD3d 817, 818 [2005], lv denied 5 NY3d 712 [2005]).

While the issue of whether to initially prescribe the medication to claimant constituted the rendition of medical treatment, the allegation that defendant failed to dispense that medication, once it was properly prescribed, is a claim for medical negligence. However, the long-term effect on claimant of the lack of Clotrimazole, Lac-Hydrin, and/or Eucerin is beyond the ordinary experience and knowledge of a layperson, and must be supported by expert testimony (see Duffen v State of New York, 245 AD2d 653 [1997], lv denied 91 NY2d 810 [1998]; see also Wood v State of New York, supra; Tatta v State of New York, supra; Wells v State of New York, supra), particularly given claimant’s diabetic condition.

Claimant has established that defendant violated its health care policy by failing to return his prescription medications to him when he arrived at Southport. Claimant has further set forth expert evidence that in the absence of using these medications, he continued to suffer from dry, itchy and cracked skin on his feet. However, claimant failed to establish that his now allegedly chronic condition resulted from the lack of the Clotrimazole, Lac-Hydrin, and Eucerin. Accordingly, the Court finds that claimant is entitled to damages in the amount of $25 for the deprivation of the Clotrimazole and Lac-Hydrin from April 9, 2004 through April 14, 2004, and for the deprivation of the Eucerin from April 14, 2004 through May 28, 2004.

With respect to his second cause of action for medical negligence, claimant testified that he was diagnosed with diabetes in November 2003, and that he was still trying to learn the “ins and outs”[9] of the disease when he was transferred to Southport. Claimant testified that although he informed the staff at his medical orientation into Southport that he had been on a diabetic diet prior to his arrival there, defendant refused to place him on that type of diet until he was examined by a physician. Claimant testified that he was denied the diabetic diet for six to seven days, and during that time experienced sweating, rapid heart rate, disorientation, weakness, and hunger. Claimant testified that because he received insulin injections, he saw someone from the medical staff every day, and he relayed these symptoms to them. Claimant testified that when he was ultimately put on the diabetic diet, his symptoms gradually improved and his blood sugar level stabilized over the course of a few weeks.

Dr. Braselmann testified that inmates who are diabetic are seen by the medical staff within a week of their admission into the new correctional facility, and that the inmate could request a special diet at that time. Dr. Braselmann testified that a person suffering from low blood sugar or high blood sugar could experience a variety of symptoms, including confusion, rapid heartbeat, excess sweating, loss of consciousness, and excessive thirst. Dr. Braselmann reviewed claimant’s medication record for insulin distribution, and testified that his blood sugar levels were slightly high, which indicated that claimant’s control over his diabetes could be improved. Dr. Braselmann did admit that following a diabetic diet would assist in maintaining a stricter control on those blood sugar levels. However, Dr. Braselmann also stated that the amount of insulin which claimant received was determined on a “sliding scale” by reviewing his actual blood sugar level at the time of the injection, and that the claimant’s blood sugar levels had been adequately controlled during his first week at Southport. Dr. Braselmann also testified that the lack of a diabetic diet for a short period of time would not cause any negative long-term effect.

The Court finds that defendant’s delay in implementing a diabetic diet for claimant did not constitute medical negligence. Although claimant’s blood sugar levels were elevated (resulting in part from the lack of a diabetic diet) and he experienced physical symptoms associated with those abnormal levels, the medical evidence established that there was no lasting impact on his condition. Further, claimant was examined by a physician and a diabetic diet was arranged within a week of his arrival at Southport, both of which occured within a reasonable amount of time (see Latine v State of New York, Ct Cl, May 22, 2006, Minarik, J., Claim

No. 103958 [UID # 2006-031-512]). Accordingly, this cause of action for medical negligence is dismissed.

Claimant has also asserted two bailment causes of action. Claimant alleges that several items of personal property were lost or damaged when he was transferred from Green Haven to Southport. Claimant filed facility claim #630-029-04 on April 12, 2004 to recover for the following items:
4 cassette tapes @ $10.00 each $40.00
22 cassette tape cases @ $2.00 each $44.00

50 manila envelopes @ $0.20 each1[0] $10.00
Total $94.00

This facility claim was disapproved and the administrative appeal was denied.

At trial, claimant testified that the items were approximately 18 months old and in excellent condition. At the close of his proof on this cause of action, claimant requested that defendant produce the inventory sheets of personal property transferred (I-64s) concerning his property transfer from Green Haven to Southport which he had previously requested in his discovery demands. The Court directed defendant to provide I-64s relating to that transfer.

In response, defendant has provided an undated I-64 packed at Southport concerning baggage with seal number 0850270 (the Southport I-64),1[1] an I-64 dated April 9, 2004 for property checked at Green Haven which concerns baggage with seal numbers 0774365, 0774366, 0774367, 0774368, 0774369 (the Green Haven I-64), and an undated I-64 for property checked at Green Haven which was listed as being contained in claimant’s two “SHU Cell Bag[s]” (the SHU I-64).1[2]

The Green Haven I-64 indicates that claimant declined express mail for five bags (which included one typewriter) containing the above-referenced seal numbers, and that said bags were to be shipped by a State vehicle. Notably, the Green Haven I-64 does not contain an itemized inventory of the personal property placed in the five bags (other than one bag contained a typewriter), and defendant has failed to provide any other I-64 which would contain the inventory of the individual items. Claimant asserts that because defendant did not produce the I-64 form dated January 14, 2004 - which itemized the inventory of his property at the time that he was transferred to the Special Housing Unit at Green Haven - the Court should draw an adverse inference against defendant. The Southport I-64 contains an inventory of certain property, and also states that there are bags with “incoming seals” 0774365, 0774366, 0774367, 0774368 and 0774369. However, the Southport I-64 is not dated and indicates that the items were “packed at” Southport, leading to the inference that said I-64 was referring to the property which claimant had in his possession when he was transferred out of Southport.

A bailment is created when personal property is delivered into the hands of another, who is then expected to return it in the same condition on demand (Claflin v Meyer, 75 NY 260, 262 [1878]). Defendant has an obligation to secure an inmate's personal property (Pollard v State of New York, 173 AD2d 906 [1991]). Once a claimant meets the burden of proving that his property was deposited with the defendant and that the latter failed to return it, the burden shifts to the defendant to overcome the presumption of its negligence (Weinberg v D-M Rest. Corp., 60 AD2d 550 [1977]).

Even when there is no formal transfer of property, a bailment is still implied when one comes into lawful possession of the property of another (Mack v Davidson, 55 AD2d 1027 [1977]). “The determination as to whether the relationship is one of bailor and bailee turns on whether there is a relinquishment of exclusive possession, control and dominion over the property” (Alston v State of New York, Ct Cl, Aug. 19, 2005, Schweitzer, J., Claim No. 108146 [UID # 2005-036-500]).

Defendant failed to provide all I-64s that were duly demanded by claimant during discovery. These I-64s were material and necessary for claimant to establish a prima facie cause of action for bailment. The Court therefore draws a negative inference against defendant, and based upon that inference as well as claimant’s uncontradicted testimony, finds that defendant was in exclusive possession and control of claimant’s personal property when he was transferred to Southport.

The measure of recovery when bailed property is not produced upon demand is the fair market value of the property, that is, the value of the original purchase price less a reasonable rate of depreciation (Phillips v Catania, 155 AD2d 866 [1989]). Claimant has not provided any receipts, which are the best evidence of fair market value, for the damages items. However, claimant promptly filed a facility claim for the lost or damaged property, which sought reimbursement of $94.00. Claimant’s uncontradicted testimony at trial establishes that the replacement value of the damaged cassette tapes and cassette cases was a total of $60.1[3] Because these items were more than one year old, the value must be adjusted for depreciation. Claimant’s total loss is valued at $35 (see Schaffner v Pierce, 75 Misc 2d 21 [1973]).

In facility claim # 630-054-04, claimant sought recovery for the damage to a Mother’s Day card which he attempted to send in May 2004 [Claimant’s Exhibit 1]. Claimant testified that he addressed the envelope to his mother and affixed the proper amount of postage1[4] to it. Claimant stated that facility personnel returned the envelope, which had been opened, because it was oversized and apparently lacked the signature of a correction officer.

Although the envelope had been opened, claimant received the card, envelope and the unused first class stamp on May 4, 2004. Notwithstanding the condition of the envelope,

claimant could have corrected the noted deficiency and timely resubmitted the card for mailing [Claimant’s Exhibit 4].1[5] Because claimant received the property with minimal damage and could have nevertheless mailed it, the Court declines to award any monetary relief.

Claimant also testified that he filed facility claim # 630-0042-04 to recover for damage to personal property that had been mailed from Green Haven to Southport. In this facility claim, claimant sought recovery for shampoo, shower buckets, laundry detergent, soap, and manila envelopes. This facility claim was disapproved and the appeal denied [Claimant’s Exhibit 2].

The Court has reviewed both Claim No. 109512 filed on June 21, 2004 and the “supplemental claim” filed on July 19, 2004, and neither document contains any cause of action pertaining to facility claim 630-0042-04. Having failed to file a claim with the Court of Claims for recovery based upon the denial of this facility claim, claimant is barred from receiving an award for damage to that personal property (see Court of Claims Act § 10 [9]).

In conclusion, claimant’s causes of action for denial of recreation, denial of a diabetic diet, and damage of the Mother’s Day card are dismissed. Claimant is awarded damages in the amount of $25 for medical negligence based upon the withholding of his prescription medication. Claimant is also awarded damages in the amount of $35, plus the appropriate statutory interest

from April 11, 2004 for the loss of his personal property. Any and all motions on which the Court may have previously reserved or which were not previously determined, are hereby denied. Finally, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

Let judgment be entered accordingly.

June 10, 2008
Binghamton, New York

Judge of the Court of Claims

[1]. The Court previously dismissed that portion of the claim alleging a failure to provide barber services in conformance with a medically-ordered clipper permit (Green v State of New York, Ct Cl, Feb. 4, 2008, Schaewe, J., Claim No. 109512, Motion No. M-74167 [UID # 2008-044-504]).
[2]. Claimant moved both orally and by submission of written motion papers directly to the Court.
[3]. Regardless of whether the inmate received recreation, he would still be subject to discipline for violating the Grooming Standards.
[4]. Although claimant argues that the braids did not constitute a security risk because he was placed in a one-person cage during recreation, this Court does not have the jurisdiction to make that determination. The appropriate vehicle for a challenge to the validity of this regulation is to proceed through the inmate grievance procedure, and potentially to commence a CPLR article 78 proceeding in Supreme Court (see e.g. Matter of Lucas v Scully, 71 NY2d 399 [1988]).
[5]. The grievance was actually filed on April 12, 2004.
[6]. Defendant’s request that the logbook entries be reviewed in camera and then sealed is granted. Having reviewed the documents, the Court finds that the documents should be sealed. Claimant has not been prejudiced by admission of the documents, as the Court is considering the evidence of the number of times that claimant did not receive recreation. Because these entries contain information concerning inmate movement, including “sick call out,” the Court finds that both the security concerns and private information contained therein warrant sealing the documents. Accordingly, the logbook entries submitted from April 9, 2004 through May 13, 2004 are sealed. Claimant’s request that an adverse inference be drawn against defendant based upon his inability to respond to the information contained in those documents is denied.
[7]. Claimant’s testimony in this regard is also supported by his medical records.
[8]. Nonetheless, as an inmate, claimant clearly could not get those medications without a “prescription” from the facility health care provider.
[9]. All quotes are taken from the Court's recording of the proceedings.
1[0]. Claimant states that the envelopes contained legal materials, but he is seeking recovery only for the replacement cost of the envelopes themselves, and not for the material contained therein.
[1]1. That I-64 is identical to Claimant’s Exhibit 10.
1[2]. The Green Haven I-64 and the SHU I-64 are hereby admitted into evidence as Court Exhibit 1 and Court Exhibit 2, respectively.
1[3]. Claimant offered no evidence at trial of the cost of the manila envelopes.
1[4]. At that time, the cost of mailing an article weighing one ounce or less was $0.37.
1[5]. The Court notes that Mother’s Day in 2004 was May 9th.