LAMAGE v. THE STATE OF NEW YORK, #2009-015-523, Claim No. 111068
Pro se inmate claim asserting several unrelated causes of action was dismissed
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Edwin Lamage, Pro Se
Honorable Andrew M. Cuomo, Attorney General
Stephen J. Maher,
EsquireAssistant Attorney General
July 16, 2009
See also (multicaptioned
Claimant, an inmate proceeding pro se, asserts six unrelated causes of action in
his claim. Prior to trial, claimant withdrew his third and fourth causes of
action. The remaining causes of action proceeded to trial on April 30,
Claimant's First Cause Of Action
Claimant alleges as his first cause of action that medical records maintained
by the Department of Correctional Services (DOCS) were improperly disclosed to
the Attorney General's Office without his authorization. Claimant alleges that
during the course of litigating a prior claim (Claim No. 109527) personnel at
Great Meadow Correctional Facility "furnished to counsel, Mr. Frederick, H.
McGown III, medical records which are dated 4-16-04 and [5-10-04] which are
unrelated to Claim No. 109527 of claimants [sic] and  was not
authorized by claimant and not authorized by Court Order."
Claimant testified at trial that Great Meadow Correctional Facility supplied
three medical records to the Assistant Attorney General, only one of which was
related to the claim for which the authorization was provided. On
cross-examination the claimant testified that Claim No. 109527 was a personal
injury claim in which his physical and medical condition was in issue.
Received in evidence as claimant's Exhibits 1 through 5 were a copy of Claim
No. 109527 (Exhibit 1); defendant's demand for a HIPPA compliant authorization
for "records and reports of all the doctors who treated the claimant and the
hospital in which the claimant was treated" (Exhibit 2); a document denominated
Response To HIPPA Authorization, which was served on the claimant by the
Attorney General's office together with copies of claimant's authorization to
obtain medical records and his Ambulatory Health Record for the dates April 16,
2004 and May 10, 2004 (Exhibit 3); a copy of 7 NYCRR § 5.24 (Exhibit 4) and
a copy of a case, Davidson v State of New York (3 AD3d 623 )
Claimant's medical authorization attached as a part of Exhibit 3 authorized the
release of the following records:
"4. Claimant ... authorizes the Department of Correctional Services Medical
Department to furnish to Mr. Frederick H. McGown, III, a copy of claimants
medical report of claimants injuries, dated May 10, 2004.
5. Claimant further gives the Attorneys Generals office in Albany County
office, to be in possession of claimants medical report, dated May 10,
7. The defendant, the Attorneys Generals office and etc, is not authorize, to
inspect, or to be in possession of any other of claimant's medical record.
Claimant authorizing only the 5/10/2004, medical report."
The medical records released pursuant to this authorization include records of
entries made on April 16, 2004 and May 10, 2004. The records reflect two
entries made on May 10, 2004, only one of which relates to the injuries which
are the subject of Claim No. 109527. However, claimant's authorization for the
release of his medical records was not limited to the release of records
relating to injuries allegedly sustained on May 10, 2004. Rather, the
authorization included the release of the "medical report, dated May 10, 2004"
which includes all entries made on that date.
As to the records from April 16, 2004, DOCS regulations governing the
disclosure of inmate medical records incorporate by reference the HIPPA privacy
regulations and provide for the release of an inmate's medical records in
accordance with Public Health Law §§ 17 and 18 (7 NYCRR § 5.24
[a]). This section was amended effective January 26, 2005 and now contains the
"For the purpose of providing legal services on behalf of the State, its
agencies, officials, employees and persons described in Correction Law, section
24-a, such records may be released to the Office of the Attorney General, and to
outside counsel certified pursuant to Public Officers Law, section 17" ( 7 NYCRR
§ 5.24 [b)]).
Here, it is undisputed that the records at issue were provided to the Office
of the Attorney General for the purpose of providing legal services on behalf of
the State. Thus, if the medical records at issue were provided to defense
counsel after the effective date of the amendment, liability may not attach
(compare Davidson v State of New York (3 AD3d 623 , lv
denied 2 NY3d 703 , lv dismissed 5 NY3d 872  (summary
judgment imposing liability for the unauthorized disclosure of medical records
was granted based upon the former version of the regulation, which did not
include a provision authorizing the release of medical records to the Office of
Attorney General for the purpose of providing legal services on behalf of the
State). Here, claimant established only that copies of the records were
provided to him on March 21, 2005 (see Exhibit 3). He failed to
establish, however, the date the records were disclosed to defense counsel. As
a result, claimant failed to meet his burden of establishing by a preponderance
of the credible evidence that the disclosure of his medical records was
unauthorized by the applicable regulation. Claimant's first cause of action
must therefore be dismissed.
Claimant's Second Cause Of Action
Claimant alleges in his second cause of action that he was wrongfully confined
from May 10, 2004 through June 9, 2004 following a disciplinary hearing in which
he was found guilty of fighting. Claimant alleges his entitlement to damages
based upon the administrative determination reversing a finding of guilt
"because defendant have violated claimant right to have relevant witness to
testify on his behalf at the disciplinary hearing" (claim, ¶
At trial, claimant testified that his request to call several witnesses to
testify at the hearing
was denied and that these witnesses would have supported his defense to the
charge filed against him. Claimant testified that he requested the "Tower
Officer" who allegedly would have confirmed that the claimant was defending
himself against an unprovoked assault by another inmate. Claimant testified
that although Correction Officers Brooks and Vladyka testified at the hearing,
their testimony conflicted. On cross-examination claimant testified that he was
"keeplocked" from the date of the incident on May 10, 2004 through June 9, 2004.
Claimant also testified that his request to call as witnesses Correction Officer
Mulcahy and the physician's assistant who treated him following the altercation
was also denied.
Received in evidence as Exhibits 6 through 13A were the Inmate Misbehavior
Report (Exhibit 6); Fight Investigation (Exhibit 7); Witness Interview Notice
(Exhibit 8); Appeal Form To The Superintendent (Exhibit 9); hearing disposition
sheet (Exhibit 10); a copy of 7 NYCRR § 253.5 (Exhibit 11); a letter from
the Deputy Superintendent for Security dated April 25, 2005 reversing the
determination of guilt (Exhibit 12); and a transcript of the hearing (Exhibits
13 and 13A).
The evidence presented in this case leads inescapably to the conclusion that
the Hearing Officer's denial of claimant's request to call witnesses was not a
deprivation of due process but a discretionary determination for which the State
is entitled to absolute immunity. The law is settled that conduct of correction
employees taken in furtherance of authorized disciplinary measures is
quasi-judicial in nature and entitled to absolute immunity (Arteaga v State
of New York, 72 NY2d 212 ; Holloway v State of New York, 285
AD2d 765, 766 ). As stated by the Court in Arteaga (at p.
220), important policy reasons underlie the application of absolute immunity
for the conduct of correction employees:
Because of the unquestioned risks to inmates, employees, and the public from a
breakdown in order and discipline in correctional facilities . . . it is
particularly important that correction officers not be dissuaded by the
possibility of litigation from making the difficult decisions which their duties
demand. Nor should correction personnel acting as reviewing officers feel
reluctant to reverse hearing determinations because doing so might expose the
State to liability."
While the Court in Arteaga was careful to point out that the State is not
immune from liability for "actions of correction personnel in physically abusing
inmates (see, Correction Law § 137 ) or in confining them without
granting a hearing or other required due process safeguard (see, 7 NYCRR
251-5.1; parts 252-254)..." (Id. at 221), here it is clear that
claimant's confinement was not the result of the denial of a relevant due
Claimant's wrongful confinement cause of action is premised upon an alleged
violation of 7 NYCRR 253.5 (a), which provides as follows:
" The inmate may call witnesses on his behalf provided their testimony is
material, is not redundant, and doing so does not jeopardize institutional
safety or correctional goals. If permission to call a witness is denied, the
hearing officer shall give the inmate a written statement stating the reasons
for the denial, including the specific threat to institutional safety or
correctional goals presented."
In its prior Decision and Order denying the claimant's motion for summary
judgment on this cause of action, the Court found that the above regulation
permits the exercise of discretion in determining whether or not to grant an
inmates request to call witnesses and that questions of fact remained unresolved
as to whether the denial of claimant's request for witnesses was an exercise of
discretion (though later determined to be wrong) or a violation of claimant's
due process right to call witnesses. In analogous circumstances, the Court of
Appeals has made clear that while a municipality is generally immune from the
injurious consequences of discretionary conduct, the complete failure to
exercise any such discretion is not the sort of conduct which may be subject to
governmental immunity (Haddock v City of New York, 75 NY2d 478 
[Court found that the municipal defendant could be liable for its negligent
hiring and retention of a parks department employee who raped a child because
although such actions could involve the type of discretionary judgments to which
immunity would attach, there was no evidence that the City made any such
decision or exercised any discretion at all prior to the rape]; cf.
Mon v City of New York, 78 NY2d 309 ).
Here, the evidence adduced at trial makes clear that the denial of
claimant's request to call witnesses was an exercise of discretion, not a
deprivation of the claimant's due process right to call witnesses on his own
behalf. Exhibit 8 reflects the Hearing Officer's reasons for the denial of the
claimant's requested witnesses, as does the transcript of the hearing (Exhibits
13, pp. 18, 19, 20, 32; Exhibit 13A, p.2 ). While the determination of guilt
may have been reversed upon a finding that the denial of claimant's request to
call witnesses was an improvident exercise of discretion (see Exhibit
12), it was an exercise of discretion nonetheless thereby entitling the
defendant to the benefit of absolute immunity (see Mon v State of New
York, supra; Holloway v State of New York, supra).
Having failed to establish this cause of action by a preponderance of the
credible evidence, claimant's second cause of action must be dismissed.
Claimant's Fifth Cause of Action
Claimant alleges as his fifth cause of action the following:
"The tort is the defendant terminated claimants double bunk cell television
privilege without due process, commenced on April 25, 2005, which deprived
claimant to participate in the television program at the Wende Correctional
Facility, County of Erie."
Claimant testified at trial that he and another inmate applied to be housed
together in a double-bunk cell while confined at Wende Correctional Facility.
The application was approved and on April 24, 2005 claimant and the other inmate
were housed together in a double-bunk cell. The very next day, however,
claimant was placed in a single-bunk cell. Claimant testified that because only
double-bunk cells are equipped with televisions, the move to a single-bunk cell
eliminated his television privileges. According to the claimant, although
inmates housed in a single-bunk cell are permitted to have a television they
must purchase their own.
On cross-examination claimant testified that he was informed by a sergeant that
his double- bunk privilege had been terminated because both he and his cellmate
are homosexuals. Claimant testified that he lost his television privileges when
he lost the double-bunk cell. Claimant agreed that the decision to allow
double-bunking is a discretionary one. Claimant testified that pursuant to
Directive 4003, double-cell bunking may be terminated only by the Superintendent
Received in evidence as Exhibits 14 through 21 were claimant's double-bunk
request (Exhibit 14); incoming and outgoing change notices regarding inmate
movement (Exhibits 15 and 16); letters from claimant and another inmate to the
Deputy Superintendent for Security at Wende requesting reinstatement of
double-bunk privileges (Exhibit 17); a memorandum from Sergeant Zydel to the
Deputy Superintendent for Security memorializing a conversation between himself
and the claimant regarding termination of claimant's double-bunk privileges
(Exhibit 18); an affidavit from the other inmate (Exhibit 19); excerpts from
answers to interrogatories (Exhibit 20); Revision Notice to Directive 4003 and
a copy of a portion of the Directive (Exhibit 21).
Defendant called Captain Stephen Rowe as a witness. Captain Rowe testified
that he is familiar with the regulations governing double-cell bunking contained
in Directive 4003 (Exhibit A). Captain Rowe testified that the privileges
accorded inmates housed in a double-bunk cell include possession of a fan,
television, and daily showers although televisions are not required in
double-bunk cells. Captain Rowe testified that double-bunking is not permitted
for homosexual inmates or those engaged in homosexual activity. Whether or not
double-bunking is permitted is a discretionary determination, and the privilege
may be terminated by the Deputy Superintendent for Security or his or her
On cross-examination Captain Rowe testified that claimant and the other inmate
were approved for voluntary double-bunking.
Exhibits A, B and C were received in evidence and consist of a copy of
Directive 4003 (7 NYCRR 1701) (Exhibit A), a memorandum from Sergeant Zydel to
the Deputy Superintendent for Security (Exhibit B) and a memorandum from the
Deputy Superintendent for Security to Sergeant Zydel (Exhibit C). The
memorandum from Sergeant Zydel (Exhibit B) states the following:
"Explained everything to inmate, concerning himself & [the other inmate]
being bunked together. States he was surprised the D.S.S. approved it, seeing
he is a homosexual himself. Advised him of my findings, which he has no problems
Directive 4003 makes clear that double-cell housing is a privilege, not a
right, and that the determination to grant or deny double-cell housing lies
within the sound discretion of the Deputy Superintendent for Security or his or
her designee. In this regard, section 1701.5 (f) provides as follows:
"Notwithstanding any other provision of this section, no inmate has a right to
be housed in a double-cell or to be housed in a double-cell with a particular
inmate. An inmate's request to be housed in a double-cell or to be housed in a
double-cell with a particular inmate can be denied by the deputy superintendent
for security or designee in the exercise of his or her sound discretion" (7
NYCRR 1701.5 [f]).
The law is clear that "[a]s a court of limited jurisdiction, the Court of
Claims has no jurisdiction to grant strictly equitable relief" (Madura v
State of New York, 12 AD3d 759, 760 , lv denied 4 NY3d 704
, citing Ozanam Hall of Queens Nursing Home v State of New
York, 241 AD2d 670, 671  and Psaty v Duryea, 306 NY 413
). The threshold question in determining the subject matter of the Court
of Claims is "[w]hether the essential nature of the claim is to recover money,
or whether the monetary relief is incidental to the primary claim" (Matter of
Gross v Perales, 72 NY2d 231, 236 ; see also Guy v State of
New York, 18 AD3d 936 ). " 'The second inquiry, regardless of how a
claimant categorizes a claim, is whether the claim would require review of an
administrative agency's determination – which the Court of Claims has no
subject matter jurisdiction to entertain' " (Buonanotte v New York State Off.
of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1143-1144 ,
quoting City of New York v State of New York, 46 AD3d 1168, 1169
; see also Hoffman v State of New York, 42 AD3d 641, 642
; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ.
Servs., 77 NY2d 753 ; Sidoti v State of New York, 115 AD2d 202
; Schaffer v Evans, 86 AD2d 708 , affd 57 NY2d 992
). While the instant claim seeks money damages, review of an
administrative determination by DOCS would be required. As a result, the proper
procedural vehicle for challenging the administrative determination regarding
termination of double-bunk cell privileges is a proceeding pursuant to article
78 of the CPLR, not an action in the Court of Claims (Buonanotte v New York
State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d at 1144;
Chaney v Van Guilder, 14 AD3d 739 ). Claimant's fifth cause of
action must therefore be dismissed.
Claimant’s Sixth Cause Of Action
Claimant's sixth cause of action alleges that "the defendant subjected claimant
to 28 days wrongful confinement/keeplock, start date July 6, 2005 thru August 2,
2005, at the Wende C.F., County of Erie" (Claim ¶ 54) Claimant alleges in
the claim that the hearing on the charges which resulted in the claimant's
confinement was not completed in a timely manner and that no confinement report
was issued to the Superintendent.
Claimant testified at trial that he received a misbehavior report on July 6,
2005 for fighting. The hearing commenced on July 12, 2005 and was not completed
until July 29, 2005. Claimant testified that the hearing was required to be
completed by July 20, 2005, the 14th day following the writing of the
misbehavior report. According to the claimant an extension of time to complete
the hearing was not obtained until July 21, 2005, one day after the required
date for the completion of the hearing. Claimant was placed on keeplock status
on July 6, 2005 and the pre-hearing confinement report was not provided to the
Superintendent until the next day. Claimant testified that he was confined "on
keeplock" for 45 days.
Claimant's Exhibits 22 through 28 were received in evidence. Of significance
are the misbehavior report reflecting the occurrence of the incident on July 6,
2005 (Exhibit 22) and the request dated July 21, 2005 for an extension of time
(to July 26, 2005) to complete the hearing, (Exhibit 23). Defendant's Exhibits
A, B and C were received in evidence. These exhibits reflect that the claimant
was found guilty of the charges filed against him (Exhibit A) and that a second
request for an extension to complete the hearing was granted to July 29, 2005.
In order to establish a cause of action for wrongful confinement, the claimant
must establish that the defendant confined him without his consent, that he was
aware of the confinement and that it was not privileged (Broughton v State of
New York, 37 NY2d 451, 456 , cert denied sub nom
Schanbarger v. Kellogg, 423 US 929 ). Here, no proof was offered
that the determination of guilt relating to these charges was reversed. As a
result, the claimant is precluded from relitigating the propriety of the
confinement under the guise of a claim for money damages in the Court of Claims
(Lublin v State of New York, 135 Misc 2d 419,  affd 135 AD2d
1155  lv denied 71 NY2d 802 ]). Stated otherwise, the
undisturbed finding of guilt following the disciplinary hearing stands as a
conclusive bar to relitigating the privilege issue in the context of a cause of
action for wrongful confinement in the Court of Claims. As set forth above,
the proper procedural vehicle for challenging an administrative determination is
an article 78 procedure in the Supreme Court (see e.g. Matter of
Chaney v Selsky, 37 AD3d 983 ). As the claimant apparently failed to
avail himself of this procedure, the sixth cause of action asserted in the
supplemental claim must be dismissed.
Based on the foregoing, the claim is dismissed.
Let judgment be entered accordingly.
July 16, 2009
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
. The quoted excerpt is uncorrected.
. The quoted excerpt is uncorrected.