New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2009-015-523, Claim No. 111068


Synopsis


Pro se inmate claim asserting several unrelated causes of action was dismissed following trial.

Case Information

UID:
2009-015-523
Claimant(s):
EDWIN LAMAGE
Claimant short name:
LAMAGE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111068
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Edwin Lamage, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 16, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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, 2009.


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 [2004]) (Exhibit 5).

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, 2004...

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." [1]

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 following provision:
"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 [2004], lv denied 2 NY3d 703 [2004], lv dismissed 5 NY3d 872 [2005] (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, ¶ 19).[2]
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 [1988]; Holloway v State of New York, 285 AD2d 765, 766 [2001]). 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 [5]) 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 process safeguard.

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 [1990] [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 [1991]).

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 for Security.

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 designee.

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 with."
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 [2004], lv denied 4 NY3d 704 [2005], citing Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997] and Psaty v Duryea, 306 NY 413 [1954]). 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 [1988]; see also Guy v State of New York, 18 AD3d 936 [2005]). " '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 [2009], quoting City of New York v State of New York, 46 AD3d 1168, 1169 [2007]; see also Hoffman v State of New York, 42 AD3d 641, 642 [2007]; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753 [1991]; Sidoti v State of New York, 115 AD2d 202 [1985]; Schaffer v Evans, 86 AD2d 708 [1982], affd 57 NY2d 992 [1982]). 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 [2005]). 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 [1975], cert denied sub nom Schanbarger v. Kellogg, 423 US 929 [1975]). 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, [1987] affd 135 AD2d 1155 [1987] lv denied 71 NY2d 802 [1988]]). 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 [2007]). 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
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1]. The quoted excerpt is uncorrected.
[2]. The quoted excerpt is uncorrected.