The claim alleged injuries arising from the failure to honor a feed-in permit and provide claimant meals in his cell at Green Haven Correctional facility for three days. After a trial on liability, the court found the State not liable for negligence and dismissed the claim.
|Claimant short name:||WIGGINS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||STEPHEN J. MIGNANO|
|Claimant's attorney:||MORNINGSIDE HEIGHTS LEGAL SERVICES, INC.
By: Brett Mary Dignam, Esq.
|Defendant's attorney:||LETITIA JAMES, ATTORNEY GENERAL
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 21, 2020|
|See also (multicaptioned case)|
The claim alleges that from June 10 through 12, 2015, employees at Green Haven Correctional Facility ("Green Haven") did not provide claimant with meals in his cell, in contravention of a valid "feed-in" permit directing him, for medical reasons, not to go to the mess hall. Claimant seeks damages for alleged emotional and physical injuries resulting from the State's negligence and violation of his State Constitutional right against cruel and unusual punishment (see Article 1, §5). A trial on liability took place on October 9, 2019.
Claimant testified on his own behalf. The State called the following three witnesses: Correction Officer ("C.O.") James Goehl; C.O. Tracey Ott; and Nurse Practitioner Mary Ashong. The following claimant's exhibits were admitted on stipulation: Green Haven medical excuse permit (Exh. 1); Ambulatory Health Record Progress Note (Exh. 2); Logbook Entries (Exh. 3); DOCCS Request and Report of Consultation (Exch. 5); Directive #4310 Food Service Operations Manual (Exh. 6); and Grievance documents (Exhs. 9-14). The following State exhibits were admitted on stipulation: Ambulatory Health Record (Exh. A); Grievance (Exh. B); Logbook Entries (Exh. C); and Inmate Statement (Exh. D). At trial the court admitted pharmacy records as State Exh. E.
Claimant testified that he was housed on F-Block at Green Haven. On June 10, 2015, the nurse at sick call examined claimant's eye, which was irritated and swollen. She sent him to the clinic, where Nurse Practitioner Mary Ashong diagnosed his eye problem as conjunctivitis, which is contagious. She told him to stay in his cell for three days and gave him a three-day "feedin" permit. Exhibit 1 is a copy of that permit. There were three copies of the permit. The doctor kept the original and gave claimant two copies - one for his records and the other for the housing unit officers (T: 12-13, 24-34, 198, 202).
Claimant alleges that he returned from the clinic right before lunchtime and gave a copy of the medical feed-in permit to C.O. James Goehl, the "A-man" stationed in the F-Block bubble. Claimant expected to be fed lunch in his cell. He did not receive lunch. That afternoon he went to the commissary and purchased legal materials with the remaining $9 in his account. He did not purchase food. Claimant did not receive dinner that day, and he did not get any meal trays on June 11 and 12, 2015 (T: 33-34, 39-44, 79, 104-106). He repeatedly complained to the porter and the C.O.s during the three days he was locked in his cell and not being fed. As a result of not being fed he became nauseous, disoriented, lightheaded and paranoid. He filed a grievance (T: 44, 59, 70-71, 81-82, 106; Exhs. 9-14).
On cross-examination, claimant testified that he did not have any problems with the C.O.s on F-Block (T:75). The feed-in permit allowed him to eat in his cell. He was not confined to the cell. He could go to the yard, programming, the commissary and the law library (T: 76-77). During the three days he was not fed, he did not ask to speak with a supervisor, put his name down to go to the mess hall, or go back to sick call. He asked a porter to tell the A and B C.O.s that he had a feed-in permit (T: 79-83). He took a trip to the law library on June 11 or 12. He would have been escorted by an officer. He mentioned not receiving a tray to officers on the block, but not to anyone outside the block (T: 85-90). There was a lockdown on June 12. All the inmates were locked in and fed in their cells (T: 91-93). Claimant testified that he did not get a meal because he fell asleep early (T: 93-97). He believed he could have been issued a misbehavior report for messing up the count by going to the mess hall (T: 100-102).
Claimant's Exhs. 1 and 2 show that he was diagnosed with Conjunctivitis and given a three-day feed-in permit on June 10, 2015. The Log Notes for F-Block dated June 10, 11 and 12, 2015 (Exh. 3) do not reflect which of the inmates received trays for "feed-up" on those days. The only references in the notes to "feed-ups [. . .] being served" appear at 7:50 a.m. and 12:05 p.m. on June 10. The Food Service Operations Manual (Exh. 6) contains a form (#1541) with charts for inserting "keeplock, SHU, hospital grounds and all other satellite counts." Among the captions for the columns are "location,' "pre-meal count," and "meals sent." Claimant's Grievance Complaint dated June 13, 2015 (Exh. 9) states, in relevant part:
"On 6-10-2015 9:30 A.M. I went to sick-call for an eye infection, and the doctor sent me to the clinic to see the doctor. [T]he doctor looked at my eye and told me she will send me some eye drop(s) and a feed in housing permit for 3-days 6-10-2015, 6-11-2015 and 6-12-2015. [T]he housing officer and the messhall supervisor deprived me of food for the three days [. . .] I want compensation for the 3-days I was deprived of food."
The Superintendent's Decision (Exh. 13) found that "[F]or medical reasons, [claimant was] directed to not go to the mess hall." The final decision by the Central Office Review Committee (Exh. 14) provides:
"[T]he action requested herein is hereby accepted in part. CORC notes that the grievant was issued a feed-in permit from 6/10/15-6/12/15 and both him and the housing unit were provided copies of it. CORC was unable to confirm if the grievant received food trays; however, he is advised to address future similar concerns to housing unit staff during routine rounds or the area supervisor. CORC has not been presented with sufficient evidence to substantiate his claim of not being fed. With respect to the grievant's appeal, CORC asserts that monetary damages are not an available remedy through the inmate grievance mechanism."
Claimant made a motion to admit into evidence affidavits by two inmates stating that they heard claimant complain about not receiving the trays in his cell. The State opposed the motion. The court reserved decision.
Sergeant James Goehl testified that in June 2015 he worked in claimant's housing unit.(1) If there was a shortage of trays, it was easy to fix; it required only one call to the mess hall and a tray would be sent five or ten minutes later (T: 116-122, 150, 159). In his 13 years of experience, he has never heard of an inmate with a medical excuse permit being written up for going to chow (T: 125). On June 12, 2015 there were 244 inmates in F Block (T: 130-131). On cross-examination, Sgt. Goehl testified that the midnight shift generates a list of which inmates are to be fed in their cells, and what they are being fed, which gets updated during the day. They keep a copy in the bubble. He thinks the original goes to the mess hall. At the end of the 3 to 11 shift, the copy gets thrown away (T: 142-146). If an inmate comes back from sick call with a medical feed-in permit, he updates the list and puts a tag next to the inmate's name on a board in the bubble (T: 147-149).
C.O. Tracey Ott testified that the logbook entries for June 12, 2015 (Exh. C) show there was a lockdown at 1348 hours. It was her duty to feed the block of inmates locked in their cells, which included claimant. She and other officers delivered 244 meals to the housing. She also testified that it could become chaotic at the bubble (T: 177, 186).
Nurse Practitioner Mary Ashong testified that she saw claimant in the clinic on June 10, 2015 and diagnosed him with conjunctivitis. She gave him a medical feed-in permit and told him to stay in his cell for three days because he was infectious. She has never issued a misbehavior report or heard of one being issued to an inmate who goes to the mess hall even though he has a medical feed-in permit (T: 198-201, 213).
Claimant's case depends entirely on his testimony at trial, which the court finds was unpersuasive. His credibility as to several key facts was called into question. He testified that the State deprived him of food trays on June 10, 11 and 12, 2015, yet there is no dispute that a lockdown took place on June 12 and food trays were delivered to all the inmates locked into their cells. Claimant's explanation that he was asleep so he did not actually receive his meal is irrelevant to his claim that meals were not delivered.
Claimant also admits that he was not entirely confined to his cell during the three-day period. Despite his alleged dizziness, lightheadedness and general weakness, he took trips to the commissary and the law library, but he did not inform anyone outside of the housing block that he was not receiving meal trays. He also admits that he did not ask to speak with a supervisor, put his name down to go to the mess hall, or go back to sick call. Even if it is true that claimant did not receive his meal trays for several days, credible evidence shows he could have taken steps to remedy the situation. The court credits the testimony by Sgt. Goehl that a missing tray could be easily be resolved with a phone call to the mess hall. The reasonable inference from the evidence is that the officer-in-charge did not know claimant had a feed-in permit, or that he was not receiving his trays. Indeed, there was no evidence that claimant was deprived of food out of animus. He testified that he did not have any problems with the officers on F-Block and the C.O.s corroborated this circumstance.
Turning to claimant's motion for admission of affidavits by inmates attesting they heard claimant complaining about not receiving meal trays, the motion is denied. Claimant's attorney argued at trial that the affidavits do not contain hearsay statements because they would not be used for the truth of the matter asserted. Counsel wisely abandoned that unsupportable argument in her posttrial memorandum. She is now arguing that: the affidavits corroborate claimant's testimony that he complained about not receiving trays; the State failed to produce evidence that claimant had been provided trays; and the affidavits and the State's failure to produce evidence support "an inference that he was, in fact, not fed" (Memo at pg. 7).
Prior to trial, the court denied claimant's motion for issuance of a subpoena to inmate Karsem Williams for his testimony at trial. Mr. Williams attests in his affidavit (attached to post-trial memo) that claimant had a medical permit, the permit was not honored, he was confined in his cell and not fed for three days. The court found Mr. Williams' testimony would be cumulative to other evidence regarding the feeding of inmates. The correspondence between the parties attached to the posttrial memorandum shows claimant requested production of "Feed-in logs or any other records or documents reflecting prisoners who were to receive meals in their cells for Claimant's housing unit from June 9, 2015, to June 13, 2015" (2/1/17 letter). A follow-up letter to the State notes a lack of response and requests "Documents responsive to the request for feed-logs identified in correspondence dated February 1, 2017 (3/3/17 letter).
At trial, among the admitted exhibits were log notes for F-Block from June 10-13, 2017 (Exhs. 3 and C), and Directive #4310, a Food Service Operations Manual (Exh. 6). The log notes do not identify individual inmates or cells receiving food trays. Section 6(E) of the Manual describes a form (#1541) to be filled out and maintained showing the count of inmates and of meals in "satellite" locations. At trial, claimant's counsel sought admission of a completed Form #1541 produced pursuant to a FOIL request. The court denied admission at that time due to a lack of foundation; the request itself had not been provided (T: 68-70). Counsel showed the same document to Sgt. Goehl during cross-examination but he did not recognize it (T: 152-155). Sgt. Goehl also testified that a "feed-up list" of which inmates were supposed to be fed in the cell was prepared daily at the housing block, updated throughout the day, then thrown away and replaced by a new list.
Although Green Haven's record keeping practices, at least as to the provision of meal trays to housing blocks, seems less than ideal, under the circumstances the court does not find a negative inference is warranted. Even assuming claimant did not receive some meal trays, claimant failed to establish, by a preponderance of the credible evidence, that the State breached a duty of care to him resulting in injury, and that he took reasonable steps to mitigate his damages.(2) Claimant was not confined to his cell. He could have reported the problem to someone in charge and he could have put his name down for a call-out to the mess hall for a meal, or to sick call if he was, as he claims, feeling sick due to not eating. He did not. Rather, he went to the law library. Claimant's testimony that he became physically ill because he was not receiving food is simply not credible.
The court also dismisses claimant's State Constitutional tort claim. Although, in limited situations, a private cause of action to recover monetary damages for State Constitutional violations can arise (see Brown v State of New York, 89 NY2d 172, 177-178 ), no such claim will lie where the claimant has an adequate alternative remedy for the alleged wrongs (see Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Bullard v State of New, 307 AD2d 676, 678 ). The alternative remedy here is a claim for negligence, which claimant failed to establish by a preponderance of the credible evidence.
Finally, the court notes that arguably, the claim requires judicial review of an administrative determination. Claimant submitted a grievance making the same claim as that here, and the Central Office Review Committee found there was insufficient evidence that claimant did not receive his meal trays. Review of an administrative determination must be brought in a CPLR Article 78 proceeding (see Matter of Johnson v Fischer, 89 AD3d 1295 [3d Dept 2011] [denial of grievances concerning the service of incorrect food portions challenged in CPLR Article 78 proceeding]; Johnson v State of New York, UID No. 2014-044-568 [Ct Cl, Schaewe, J., Nov. 20, 2014]; Campbell v State of New York, UID No. 2014-038-101 [Ct Cl, DeBow, J., Feb. 7, 2014]).
After observing and listening to the witnesses, and reviewing the exhibits admitted at trial, the court finds defendant not liable for negligence and dismisses Claim No. 126747. The Chief Clerk is directed to enter judgment accordingly.
Any motion still pending is denied as moot.
January 21, 2020
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
1. He was promoted to Sergeant a few months before trial.
2. Failure to Mitigate Damages is the Eighth Affirmative Defense in the State's Answer.