New York State Court of Claims

New York State Court of Claims
GREEN v. THE STATE OF NEW YORK, # 2010-015-509, Claim No. 113099


Inmate's various causes of action were dismissed following trial.

Case information

UID: 2010-015-509
Claimant(s): SHAWN GREEN
Claimant short name: GREEN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113099
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Shawn Green, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Stephen Maher, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 26, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, a pro se inmate, alleges several causes of action all arising from incidents which occurred on or after the issuance of misbehavior reports on October 16, 2006 and November 15, 2006. The claim proceeded to trial on December 2, 2009.

The claim filed on December 12, 2006 alleges the claimant was illegally confined on two separate occasions. With regard to the first incident on October 16, 2006, the claim alleges that Correction Officer Russell and Correction Officer Charboneau issued separate "false, arbitrary, capricious and invalid misbehavior reports against claimant." Claimant testified at trial that he was confined to his cell for thirty days as a result of the issuance of the tickets and that he lost package, phone and commissary privileges during that period. Claimant testified that the finding of guilt on the allegations contained in the tickets issued on October 16, 2006 was administratively reversed on November 9, 2007.

With regard to the events of November 15, 2006, the Court previously granted claimant's motion for summary judgment on that portion of the claim alleging he was wrongfully confined for a period of eight days from November 24, 2006 to December 1, 2006 (Green v State of New York, Ct Cl, October 31, 2007 [UID # 2007-015-241, Claim No. 113099, Motion No. M-73701] Collins, J., unreported). Claimant is awarded the amount of $15.00 for each day he was wrongfully confined for a total of $120.00.

The claim also asserts that the claimant was assaulted on November 15, 2006 by Correction Officer Allen. At trial the claimant testified that he exited the infirmary after receiving an insulin shot and entered a line forming for the mess hall. Correction Officer Allen asked claimant to provide identification, placed him on the wall and began a pat frisk when he pushed the claimant against the wall causing him to strike his head sustaining lacerations over his left eye and, allegedly, pain in his legs.

The defendant called Correction Officer James Allen. Correction Officer Allen testified that he was employed as a Correction Officer at Great Meadow Correctional Facility in November 2006 when he was involved in an incident with the claimant which resulted in the issuance of a misbehavior report. According to Correction Officer Allen, the claimant exited the infirmary and joined the mess hall line which he was supervising. Correction Officer Allen asked the claimant to identify himself and "where he bunked," at which time the claimant became "mouthy." The witness placed the claimant on the wall to begin a pat frisk. According to the officer, inmate Green was moving and turning around during the course of the frisk, causing Correction Officer Allen to pull both of the claimant's arms behind his back so that handcuffs could be applied. The witness testified that he did not place the claimant in a hold and that another correction officer applied handcuffs to the claimant while Correction Officer Allen held his arms behind his back.

Claimant testified that following the above referenced incident he was wrongfully admitted to the Great Meadow Correctional Facility Special Housing Unit (SHU). He claimed at trial that the incident did not rise to the level of SHU admission and that once admitted to SHU, he was given neither a washcloth nor a comb within the timelines required by Department of Correctional Services (DOCS) directives. As a result of this alleged failure, the claimant's appearance suffered, causing him to become the subject of ridicule from other inmates and correction officers. Claimant also alleges the defendant negligently failed to provide him certain medications, other than insulin for his diabetes, during the time he was confined to the SHU. Exhibits A and B were received in evidence following the conclusion of claimant's testimony.

Finally, the claimant testified in support of his supplemental claim alleging that certain items of claimant's personal property were "packed up" by Correction Officers Powell and Lewis upon claimant's admission to SHU and not returned following his release. Claimant identified the subject property in his testimony and related that an administrative claim seeking compensation for the lost items was filed on November 24, 2006.

At the conclusion of claimant's testimony the defendant moved to dismiss the bailment claim on the basis that the claimant failed to identify the specific items of property taken upon his entry into SHU and not returned to him upon his release.

Addressing first claimant's allegation that he was wrongfully confined for 30 days following the issuance of misbehavior reports on October 16, 2006 (Exhibit A), claimant was required to establish 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] ). Claimant's ability to recover in this case turns on whether the confinement was privileged.

As the Appellate Division, Third Department, observed in Holloway v State of New York, (285 AD2d 765 [2001]) "actions of correctional facility employees with respect to inmate discipline matters are quasi-judicial in nature and, unless the employees exceed the scope of their authority or violate the governing statutes and regulations, [defendant] has absolute immunity for those actions" (Id. at 765-766; see also Arteaga v State of New York, 72 NY2d 212 [1988]; Davidson v State of New York, 66 AD3d 1089 [2009]). While claimant argues that issuance of the misbehavior reports on October 16, 2006 was arbitrary and capricious, he failed to establish that the DOCS employees involved exceeded the scope of their authority or violated governing statutes or regulations in issuing the reports. Absent such evidence, DOCS is immune from liability for the quasi-judicial determinations of its employees in initiating and prosecuting disciplinary proceedings (Arteaga v State of New York, supra). Since the reversal of discretionary determinations, standing alone, provides no basis for concluding that the confinement was not privileged (see Holloway v State of New York, supra), claimant failed to establish by a preponderance of the credible evidence his claim for wrongful confinement stemming from the October 16, 2006 incident.

Turning to claimant's contention that excessive force was used against him on November 15, 2006, the law is settled that the State is not immune from liability for assault and battery which results when an officer uses more force than is necessary in performing his or her duties (Arteaga v State of New York, 72 NY2d 212 [1988]; Jones v State of New York, 33 NY2d 275 [1973]; Stein v State of New York, 53 AD2d 988 [1976]; Correction Law 137[5]; 7 NYCRR 251-1.2). That being said, the use of force is authorized when an inmate attempts to resist or disobeys a lawful direction (Correction Law 137 [5]). "Where it is necessary to use physical force, only such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2 [b]). Assessment of the degree of force necessary requires consideration of the particular circumstances confronting the officers at the time the force was applied (Lewis v State of New York, 223 AD2d 800 [1996]; Hinton v City of New York, 13 AD2d 475 [1961]). Crediting the testimony of Correction OfficerAllen that claimant was moving around during the course of the pat frisk, and considering the slight nature of the injury - a three-quarter-inch abrasion above the left eye - the Court concludes that the force used to overcome claimant's resistance and obtain compliance with a direct order was reasonably required.

With respect to the claim that the defendant failed to provide claimant with a washcloth, comb and certain prescription medications (other than insulin) within 24 hours following his admission to SHU, claimant failed to establish that he suffered any injury as the result of defendant's conduct. With regard to claimant's testimony that his appearance suffered due to the failure to provide him with a washcloth and comb, the Court is simply unpersuaded. While the Court does not discount the importance of timely compliance with the regulation governing the issuance of necessary items to inmates admitted to SHU (see 7 NYCRR 302.2), claimant's contentions that he suffered injury as the result of the failure to provide him with a washcloth and comb within 24 hours of his admission to SHU is insufficient to support a claim for money damages under the facts presented at trial.

To the extent claimant alleges that he was not timely provided all of his prescription medications, "it was incumbent upon claimant to show by competent expert evidence that the delay was a cause of his alleged ensuing medical problems" (Trottie v State of New York, 39 AD3d 1094, 1095 [2007]). Here, claimant failed to establish that he suffered any injury as the result of the alleged delay in providing him with his prescribed medications.(1)

Lastly, claimant asserts a bailment claim for the confiscation of his shower bucket on October 16, 2006 and the loss of certain personal property which he discovered missing during an inventory of his property on November 21, 2006. A rebuttable presumption of negligence arises where it is established that the subject property was delivered to the defendant with the understanding that it would be returned, and the defendant failed to return the property or returned it in a damaged condition (Ramirez v City of White Plains, 35 AD3d 698 [2006]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 [1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1977]. Here, claimant failed to establish at trial that the property he claims was lost was delivered to the defendant or that the defendant failed to return the property. No inventory forms were offered in evidence at trial nor was there any evidence of the value of the property claimant alleges was not returned.(2) Claimant, therefore, failed to establish his bailment claims by a preponderance of the credible evidence.

Based on the foregoing, the claim is dismissed except to the extent of awarding the claimant $120.00 on his claim of wrongful confinement from November 24, 2006 through December 1, 2006.

To the extent claimant has paid a filing fee it may be recovered pursuant to Court of Claims Act 11-a (2).

Let judgment be entered accordingly.

February 26, 2010

Saratoga Springs, New York


Judge of the Court of Claims

1. Claimant also alleges in the claim that DOCS failed to provide him with a diabetic diet until November 30, 2006. As claimant failed to adduce any evidence on this point at the time of trial, the Court considers this claim abandoned.

2. While the claimant forwarded certain documents to the Court subsequent to trial, these papers cannot be considered as they were not received in evidence at the time of trial.