Claim fails to set forth valid cause of action relating to exposure to second-hand smoke or the appropriateness of housing Claimant in a double-occupancy cell. However, Claimant met his burden of demonstrating that Defendant negligently failed to provide him with a lower bunk assignment. Claimant awarded $150.00, inclusive of interest, for mildly sprained knee.
|Claimant short name:||REID|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||CEDRIC REID, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO
New York State Attorney General
BY: BONNIE GAIL LEVY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 26, 2010|
|See also (multicaptioned case)|
Claimant, Cedric Reid, an inmate in the custody of the New York State Department of Correctional Services, commenced this action seeking money damages, alleging that Defendant negligently placed him in a double-occupancy cell for a three-week period in the summer of 2006. I conducted the trial of this claim on September 9, 2009.
In support of his claim, Mr. Reid testified that he was assigned to a double-occupancy cell between August 23, to September 16, 2006 at Auburn Correctional Facility. Claimant indicated that there were three distinct problems with his cell assignment. First, he asserted that it was a mistake to place him in a double-occupancy cell. Second, he asserted that Defendant negligently placed him with a cellmate who smoked. Finally, Claimant asserted that Defendant negligently gave him an upper bunk assignment when he required a lower bunk assignment for medical reasons.
With regard to his being placed in a double occupancy cell, Claimant testified that he believed Defendant failed to take appropriate steps to evaluate either him or his cellmate before placing them in a cell together. Despite his assertions, however, Defendant adequately demonstrated, through both testimony and documentary evidence, that Claimant was approved for and appropriately placed in a double-occupancy cell. Lieutenant Michael Ouimette, testified that he had been assigned to investigate a grievance Claimant filed on September 5, 2006, relating to his cell assignment. Documents related to Defendant's investigation of the grievance are contained in Defendant's Exhibit E ("Grievance Packet"). These documents, and the testimony of Lieutenant Ouimette, clearly demonstrate that Defendant took the appropriate steps to evaluate both Claimant and his cellmate, and that both men were appropriately approved for double-occupancy cell assignments. Accordingly, I find that this portion of the claim is without merit.
Similarly, Claimant's contention that Defendant negligently placed him with a smoker is without merit. First, I note that the State of New York does not have a duty to provide inmates of a correctional facility with a smoke-free environment (Gill v State of New York, Ct Cl, February 20, 2009 [Claim No. 114147, Motion No. M-75607], Marin, J., UID No. 2009-016-010). As an inmate, Claimant's rights with respect to restrictions on smoking in prisons are limited under article 13-E of the Public Health Law ("The Indoor Clean Air Act"). In Shepherd v State of New York (Ct Cl, July 19, 2000, Claim No. 97504, Motion No. M-60869, UID No. 2000-005-523), Judge Corbett held that Defendant's alleged failure to properly screen non-smoking inmates, pursuant to double-cell housing regulations, did not necessarily create a cause of action sounding in negligence. Moreover, upon cross-examination, it was established that Claimant never complained or gave notice in any way to Defendant that his cellmate was violating facility rules by smoking indoors. Accordingly, I find that Claimant cannot recover under this theory of liability.
Claimant's final contention, however, does have merit. Claimant testified that, even if he were appropriately placed in a double cell, Defendant negligently failed to honor his "flats permit" (Exhibit 1 pp. 2, 5-7, 9) which directed that he be assigned to a lower bunk for medical reasons. Claimant stated that he injured his right knee on September 16, 2006, while climbing to the upper bunk. His uncontradicted testimony indicates that he suffered a mild sprain.
Although the actual "flats permit" was not produced at trial, Claimant adequately demonstrated that he did have such a permit. He provided a handwritten memorandum from a nurse administrator, dated November 25, 2002, referencing the "flats permit" in Claimant's record (Exhibit 1). Claimant also provided copies of forms titled "Screening And Physical Assessment For Placement In A Double-Cell," dated March 28, 2002 through February 6, 2003, as well as an entry from his "Ambulatory Health Record," dated March 28, 2002, to prove he required a lower bunk assignment. These documents are also contained in Exhibit 1.
The procedures for the selection of inmates for double-cell housing are set forth in Title 7 of the New York Codes, Rules and Regulations, § 1701.5. These regulations require that facility health staff conduct a medical records review of inmates under consideration for double-cell housing to determine whether any of those inmates require placement in a bottom bunk bed (7 NYCRR § 1701.5[c][i]). Significantly, once Claimant had been given a lower bunk assignment, 7 NYCRR § 1701.7[e] requires that the lower bunk assignment not be changed without first consulting with medical staff. I find that, although Defendant did change Claimant's assignment to an upper bunk, it failed to comply with 7 NYCRR § 1701.7[e]. Accordingly, I find that Defendant is 100% liable for the injury to Claimant's right knee.
With regard to damages however, there is no evidence indicating that Claimant was seriously injured while attempting to climb up to his bunk on September 16, 2006. Claimant has failed to offer proof that he suffered any injury more severe than a mild sprain. The only evidence before the Court are Claimant's subjective complaints of mild discomfort. I hereby award Claimant the sum of $150.00, inclusive of interest, for his injuries.
To the extent Claimant has paid a filing fee, it is recoverable pursuant to Court of Claims Act § 11-a (2).
All other motions on which the Court may have previously reserved or which were not previously determined are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
February 26, 2010
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims