New York State Court of Claims

New York State Court of Claims

SHEPHERD v. THE STATE OF NEW YORK, #2009-040-062, Claim No. 108681


Following trial, Claim dismissed. Failure to establish by a preponderance of the credible evidence that: (1) State was negligent in destroying Claimant’s property; and (2) State provided Claimant inadequate medical care.

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:
Eon Shepherd, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
July 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Pro se
Claimant, Eon Shepherd, has failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with his Claim. The trial of this Claim was held by video conference on May 28, 2009, with the parties at Clinton Correctional Facility in Dannemora, New York and the Judge at the Court of Claims in Saratoga Springs, New York.

At trial, Claimant submitted into evidence, without objection, seven exhibits. The State introduced two items into evidence. Claimant’s Amended Claim alleges that a “chain and cross [Claimant] received from his grandmother” (Amended Claim, ¶ 5) was negligently confiscated as contraband and was ordered destroyed on October 24, 2003. It also is asserted that Claimant filed an administrative appeal and that the appeal was denied on December 15, 2003. It is further alleged that Claimant did not receive adequate medical treatment and that he was negligently denied use of his cane and knee brace.

With respect to his property claim, Claimant testified that he was transferred to Upstate Correctional Facility in Malone, New York (Upstate), on October 10, 2003 and that, when he entered Upstate, he had a chain and cross[1] hidden in his hair. He stated that the items were found by correction officers and were confiscated as contraband. Claimant stated that he was issued a misbehavior report for violating facility rules and that a disciplinary hearing was held. He testified that he was found guilty of smuggling charges and his jewelry ultimately was destroyed. Claimant appealed the hearing officer’s determination and the decision was upheld. Claimant contends that the chain and cross should not have been confiscated as contraband because he was allowed to have them at his prior facility.

Claimant stated that, prior to his transfer to Upstate, he was in the hospital unit at Elmira Correctional Facility in Elmira, New York (Elmira) and that, when his property was packed, the chain and cross were not packed. He stated that he did not give the items to a correction officer because he was “skeptical [that he would get it back] I didn’t want it to get lost. I took it upon myself to travel with it.” Claimant submitted into evidence as Exhibit 5 copies of documents he purported to be permits from other correctional facilities allowing him to possess the chain and cross. The Court has reviewed the three documents that comprise Exhibit 5. One is a permit from Shawangunk Correctional Facility located in Wallkill, New York (Shawangunk) dated July 28, 1998, allowing Claimant to have a chain and crucifix at that facility. There is also a Contraband Receipt from Shawangunk dated November 25, 1998 regarding the chain and crucifix. Apparently, when Claimant was admitted to the Special Housing Unit at that facility, he was unable to establish he had a permit for the items. The third document in Exhibit 5 is the Contraband Receipt from Upstate dated October 10, 2003 regarding the incident at issue. The Court notes that Claimant did not submit into evidence any permit from Elmira, the previous facility where he was incarcerated, to establish that he was permitted to possess the chain and cross at that facility.

The State called as a witness Captain Donald Quinn. Capt. Quinn testified that he has been employed by the Department of Correctional Services (DOCS) for 25 years. He has been assigned to Upstate for 10 years. In 2003, he was a Lieutenant and performed duties as a Hearing Officer conducting inmate disciplinary hearings. Exhibit B is a copy of the Tier Hearing Package regarding Claimant’s possession of the chain, cross and lighter. Capt. Quinn reviewed Exhibit B and stated that Claimant pled guilty to the charges of smuggling, giving false information and refusing a direct order (see Ex. B, unnumbered page two).

On cross-examination, Capt. Quinn testified that contraband is any item not allowed in the facility. He admitted that, normally, a chain and a cross are allowed in the facility. He stated that, in this instance, however, the items were considered contraband because of the way they were brought into the facility.

Claimant referred the witness to DOCS Directive 4910 (Ex. 7) regarding contraband. The Directive consists of 23 pages. Page 13, Part VI deals with contraband. Section A(3) defines contraband as any property introduced into a correctional facility without the permission of the Superintendent. Section A(4) further defines contraband as any property possessed by an inmate without authorization. Capt. Quinn stated that Claimant’s chain and cross were considered contraband because Claimant did not have authorization to possess them.

To establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a breach of that duty; and (3) Defendant’s breach of that duty was a substantial factor in the events that caused the injury suffered by Claimant(see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Kampff v Ulster Sanitation, 280 AD2d 797 [3d Dept 2001]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; PJI 2:10, 2:70).

Here, upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has failed to meet his burden, and did not establish by a preponderance of the credible evidence that Defendant was negligent in destroying his chain and cross. The evidence established that the chain and cross were brought into the facility in Claimant’s hair, that he did not have authority to possess the items at Upstate and that, according to Directive 4910, page 15, Part VI(D)(5)[b], articles confiscated as potential evidence at disciplinary proceedings shall be disposed of as directed by the hearing officer. Part VI(D)(6) provides that confiscated articles can be destroyed if so authorized by the Deputy Superintendent for Security or a higher ranking official. Claimant did not submit any evidence or testimony to establish that the destruction of his property was not done in accordance with this provision of the Directive. Therefore, this portion of the Claim is dismissed.
The Court now turns to Claimant’s next cause of action regarding improper medical treatment and that he was negligently denied use of his cane and knee brace. Claimant testified that he had an injury to the anterior cruciate ligament (ACL) of his knee and a herniated disc in his back at the time of his transfer from Elmira to Upstate and, therefore, needed to use a cane and a knee brace to ambulate. Mr. Shepherd said that the medical personnel at Upstate took away his cane and knee brace and only allowed him to have it when he was outside his cell (see Ex. 2, Claimant’s medical records). Claimant stated he needed the cane and brace to walk around his cell also, as his knee gave out every two to three steps, but, medical personnel still denied him use of the cane and brace. Mr. Shepherd described several falls that he attributed to the lack of his cane and brace (see also Ex. 6). Exhibit 1 consists of copies of reports of inmate injury regarding falls in his cell allegedly because he did not have the cane or brace. Claimant wrote numerous letters of complaint to the medical department and the Upstate Superintendent regarding the alleged lack of medical care (see Ex. 3). He also submitted numerous grievances regarding this issue (see Ex. 4), yet he was not given his cane or brace. He also testified that he wanted his medications changed because the medications were no longer relieving or reducing his pain. However, his medications were not changed. Claimant further testified that he was eventually sent for an MRI of his back and it was determined that he had an L5-S1 herniated, degenerating disc but his medication was not changed. Claimant stated he was in extreme pain on a daily basis and he did not receive proper care at Upstate in his opinion.

“It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons” (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, “a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice” (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]). “The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by [laypersons] or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]). In a medical malpractice claim, where such issues are not within the usual experience and knowledge possessed by laypersons, expert medical testimony is required in order for claimant to meet the burden of proving that defendant’s alleged negligence constitutes a deviation or departure from accepted practice, and evidence must be provided that such deviation was the proximate cause of the injury asserted (Myers v State of New York, 46AD3d 1030[3d Dept 2007]; Wood v State of New York, 45 AD3d 1198[3d Dept 2007]; Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]; Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; Thomas v State of New York, 10 Misc 3d 1072[A], 2005 Slip Op 52230[U]).

Claimant’s medical records (Ex. 2) establish that Claimant was seen by members of the Upstate medical staff on numerous occasions because he was complaining of knee and back pain. On cross-examination, Claimant agreed that, while he was at Upstate, he was sent for an orthopedic consult regarding his ACL injury and also was sent for an MRI in connection with his herniated disc.

The Court has considered all the evidence, including a review of the exhibits and listening to the witness testify and observing his demeanor as he did so. Claimant provided earnest and straightforward testimony concerning the deficiencies he perceives in the treatment he received. Mr. Shepherd’s sincerity notwithstanding, the Court finds that the acts or omissions Claimant complains of cannot be assessed by the trier of fact on the basis of its common, everyday experience. Thus, in the absence of any testimony from a medical expert that the medical treatment Claimant received and the medical tests performed were improper, the Court determines and concludes that Claimant has failed to establish by a preponderance of the credible evidence that the medical care provided to him was not appropriate or adequate.

Defendant’s motion to dismiss, made at the conclusion of the trial and upon which the Court reserved decision, is now granted and the Claim is dismissed in its entirety.

The Chief Clerk is directed to enter judgment accordingly.

July 21, 2009
Albany, New York

Judge of the Court of Claims

[1].Claimant also hid a lighter in his hair, but he has made no claim for the value of it.