New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2008-044-581, Claim No. 112968, Motion No. M-74855


Inmate claimant’s motion for summary judgment denied.

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: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 30, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim alleging negligence and false imprisonment against defendant State of New York (defendant).[1] Claimant alleges that on November 15, 2005, he was transferred from Southport Correctional Facility (Southport) to Elmira Correctional Facility (Elmira) and held in a psychiatric observation cell for 2 days, and then continuously held in an isolation room for approximately 30 days thereafter, all without legitimate cause. Claimant further alleges that he was transferred back to Southport on December 13, 2005 and then to Auburn Correctional Facility (Auburn) on December 20, 2005, and that those transfers occurred without due process. Claimant also alleges that on December 19, 2005, his mental health service level classification was dropped to a level one and has remained at that level since that time.[2] Defendant answered and asserted various affirmative defenses.[3] Claimant now moves for summary judgment. Defendant opposes the motion.

As an initial matter, claimant has failed to include a copy of the pleadings which were served in this action, and this motion could be denied solely on that procedural basis (see CPLR 3212 [b]; Greene v Wood, 6 AD3d 976, 977 [2004]). However, copies of the pleadings are on file with the Clerk of the Court and were reviewed by the Court on the previous motions in this case (see e.g. Stiber v Cotrone, 153 AD2d 1006, 1007 [1989], lv denied 75 NY2d 703 [1990]). The record is therefore “sufficiently complete” for the Court to overlook claimant’s procedural defect and address the merits of the motion (Greene v Wood, supra; General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 n [1992]).

Claimant, as the movant on this motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra).

“It is well settled that in order to set forth a prima facie case of negligence, the plaintiff must demonstrate: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty, and (3) an injury suffered by the plaintiff which was proximately caused by the breach” (Murray v New York City Hous. Auth., 269 AD2d 288, 289 [2000]).

In order to establish a prima facie case of wrongful confinement – a “species” of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [1986]) – a 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 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). Defendant may enjoy immunity for claimant’s confinement in the observation/isolation room, as long as it proceeded in conformance with its regulations (see e.g. Arteaga v State of New York, 72 NY2d 212 [1988]).

Claimant contends that based upon defendant’s responses to claimant’s discovery requests, there are no disputed issues of fact in this action, and he is entitled to summary judgment. Claimant asserts that pursuant to Department of Correctional Services (DOCS) Directives 4301 and 4309, defendant owed him a duty of care to prevent his unwarranted transfer, confinement and medical/psychiatric treatment. Claimant argues that defendant violated these directives - and thereby breached its duty to him - when he was transferred to a Residential Crisis Treatment Program at Elmira, confined in isolation, and had his mental health classification lowered, all without any finding that he was suffering from a mental illness. Claimant asserts that this conduct also establishes that he was wrongfully confined.

Conversely, defendant contends that the discovery responses attached to claimant’s motion papers were submitted in an action pending in Federal Court, and thus are not properly before this Court. Further, defendant argues that the causes of action for negligence and wrongful confinement are dependent upon whether claimant’s transfer and retention in isolation were necessary to evaluate his mental health, and that there are questions of fact on that issue.

In his affidavit in support of this motion, claimant lists 23 allegedly undisputed facts. As support for many of these facts, claimant has submitted a document entitled “Defendant’s Response to Plaintiff’s Request for Admissions” (Federal Admissions). The Federal Admissions were apparently served in response to claimant’s request for admissions in a Federal Court action entitled “Geneo D. Brown, 97-A-0463, [p]laintiff, vs. McGinnis, et al., [d]efendant,”[4] with the reference number 05-CV-0758 F (Federal Action). The Federal Admissions were prepared by Michael A. Siragusa, an Assistant Attorney General, apparently on behalf of Michael McGinnis, former Superintendent of Southport,[5] one of the defendants in the Federal Action. As defendant correctly notes, 15 of the 23 allegedly undisputed facts are based upon the Federal Admissions. Because there is no evidence that the State was a defendant in the Federal Action,[6] the admissions contained in that document are not binding on defendant in this action. The remaining eight facts listed by claimant are indeed undisputed as they have been admitted by defendant in this claim (Defendant’s Reply To Claimant’s Request For Admissions, filed August 23, 2007).[7]

Claimant has submitted copies of his medical/mental health records and argues that based upon those records, it is evident that he “had no mental illness,” but was nonetheless inappropriately retained. However, these medical/mental health records which were produced by the medical/mental health staff of DOCS and the Office of Mental Health (OMH) have not been certified or otherwise authenticated (see CPLR 4518 [c]), and are therefore inadmissible for the purposes of a summary judgment motion (see Joseph E.G. v East Irondequoit Cent. School Dist., 273 AD2d 835, 836 [2000]).[8] Claimant has failed to set forth evidence that his transfer to Elmira for a mental health evaluation and subsequent detention in isolation was in violation of one of defendant’s directives, and therefore he cannot establish his entitlement to judgment as a matter of law on either his negligence or his wrongful confinement causes of action. Accordingly, claimant’s motion for summary judgment must be denied on this ground regardless of the sufficiency of defendant’s answering papers.

In any event, however, this motion would still be denied. Contrary to claimant’s position, the medical/mental health records do not conclusively establish that he had no form of mental illness. A review of the records reveals some documentation that claimant may have been suffering from Adjustment Disorder and Anti-Social Personality Disorder (ASPD) (Claimant’s Motion for Summary Judgment, Initial Psychiatric Evaluation Progress Note dated November 16, 2005);[9] that he may have been suffering from paranoia (Claimant’s Motion for Summary Judgment, Psychiatric Progress Note dated November 18, 2005),1[0] and a suggestion that he should remain on a “high mental health level . . . for routine evaluation” (Claimant’s Motion for Summary Judgment, Psychiatric Progress Note dated November 25, 2005).

Defendant has also provided an affidavit from Denise Fuller, who was employed as a Social Worker II at Southport. Fuller states that on November 9, 2005, November 14, 2005, and November 15, 2005, she conducted three screening interviews of claimant to assess his mental status. Fuller states that because claimant had “a history of conspiracy-related complaints dating back to 2002 [and] [g]iven the complexity of his presentation, the restricted ability to thoroughly assess him in [SHU], and the potential harm that a hunger strike might cause to his physical health,” she believed that an evaluation pursuant to Directive 4301 was appropriate. Fuller states that claimant was thereafter transferred to Elmira to receive said evaluation.

Defendant has further submitted an affidavit from Joseph M. Militello, employed as a Psychologist II at Elmira, who interviewed claimant on November 30, 2005 and December 6, 2005. Militello states that although he prepared a “Termination Transfer Progress Note” on December 14, 2005 to transfer claimant from Elmira back to Southport, he recommended that Southport “continue to evaluate claimant’s need for mental health services.” Moreover, the Progress Note prepared by Christine Antenore on December 19, 2005 indicates that claimant had been diagnosed with “Delusional Disorder, Persecutory Type” (Termination Transfer Progress Note dated December 20, 2005, Affidavit of AAG Roberto Barbosa in Opposition, Exhibit D). In this note, Antenore further states that “[claimant] can no longer be maintain[ed] at a level II SHI [sic] facility, needs OMH one (1) level services where he can be weighed once a week, and more closely monitored” (Termination Transfer Progress Note dated December 20, 2005, Affidavit of AAG Roberto Barbosa in Opposition, Exhibit D).

There are clearly questions of fact concerning whether claimant suffered from a mental illness and whether defendant violated its own directives when it transferred claimant to Elmira and then to Auburn. Accordingly, claimant’s motion for summary judgment is denied in its entirety.

September 30, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on April 15, 2008; “Motion for Summary Judgment” dated April 10, 2008; Affidavit of Geneo Brown sworn to on February 25, 2008; Brief in Support of Motion dated February 4, 2008, and attached exhibits.

2) Affirmation in Opposition of AAG Roberto Barbosa, dated June 25, 2008, and attached Exhibits A through D.

3) Claimant’s Reply filed on July 3, 2008, and attached exhibits.

Filed papers: Claim filed on November 1, 2006; Verified Answer filed on November 30, 2006.

[1]. The Court previously dismissed claimant’s causes of action for medical malpractice, fraud, and constitutional torts, and simultaneously struck defendant’s first, second, fourth, sixth, and seventh affirmative defenses (Brown v State of New York, Ct Cl, July 16, 2007, Schaewe, J., Claim No. 112968, Motion No. M-72986; Cross Motion No. CM-73073).
[2]. Level one designation is “the most intensive level of care for the purpose of medication monitoring by psychiatric/nursing staff [and] requires one-to-one administration of medication by a nurse” (Arias v State of New York, 195 Misc 2d 64, 65 [2003]).

[3]. Claimant’s subsequent motion to amend the claim to assert causes of action for abuse of process and civil conspiracy arising out of the incidents occurring in November 2005 and December 2005, and to assert additional causes of action for false imprisonment, negligence, and abuse of process for incidents purportedly occurring in June 2007 and September 2007, was also denied in its entirety (Brown v State of New York, Ct Cl, Mar. 5, 2008, Schaewe, J., Claim No. 112968, Motion No. M-74181 [UID # 2008-044-521]).
[4]. This Federal Court action was apparently pending in the US District Court for the Western District New York.
[5]. According to information contained in the Federal Admissions, Michael McGinnis has retired from his position as Superintendent of Southport.
[6]. To the extent that claimant may be seeking money damages pursuant to 42 USC § 1983 in the Federal Action, the State would not be a proper party defendant as neither the State nor one of its officials acting in their official capacity is a “person” under this statute (see e.g. Will v Michigan Dept. of State Police, 491 US 58, 71 [1989]).
[7]. These undisputed facts are that: claimant was sent to Elmira on November 15, 2005 for a mental health evaluation pursuant to Directive 4301; he was deprived of all privileges until November 17, 2005; he met with Elmira Superintendent Burgess on November 17, 2005; on December 19, 2005, he was informed that he was classified as a mental health level one patient; and, finally, he was transferred to Auburn on December 20, 2005.
[8]. While claimant provided a copy of DOCS Directive 4301, the Court notes that he submitted only a portion of the section of the Central New York Psychiatric Center Outpatient Operations Policy and Procedure Manual which concerns services to DOCS. Further, claimant did not provide a copy of DOCS Directive 4309, which apparently contains a Hunger Strike Protocol.
[9]. It appears that claimant was ultimately diagnosed with Delusional Disorder NOS, prior to his reclassification as a level one mental health patient (Claimant’s Reply, Progress Note [Outpatient] dated December 19, 2005; see also Termination Transfer Progress Note dated December 20, 2005, Affidavit of Assistant Attorney General [AAG] Roberto Barbosa in Opposition, Exhibit D).
1[0]. At the beginning of his hunger strike, claimant expressed his belief that people at Southport were tampering with his food. Even after he ended his hunger strike and returned to Southport, claimant stated that the “food sometimes hurts the right side of [his] brain” (Termination Transfer Progress Note dated December 20, 2005, Affidavit of AAG Roberto Barbosa in Opposition, Exhibit D).