Opinion
# 2011-032-009 Claim No. 111590
02-21-2012
LEWIS v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2011-032-009 Claimant(s): JAMES LEWIS Claimant short name: LEWIS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 111590 Motion number(s): Cross-motion number(s): Judge: JUDITH A. HARD Claimant's attorney: James Lewis, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Joan Matalavage, Assistant Attorney General Of Counsel Third-party defendant's attorney: Signature date: February 21, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
FACTS
Claimant initiated this action for injuries sustained on March 28, 2005, from another inmate while incarcerated in the F-3 section (protective custody, involuntary protective custody and keeplock) at Coxsackie Correctional Facility (Coxsackie). Specifically, claimant alleges that prison officials are liable for the assault upon him by inmate Powell because the prison officials were negligent by allowing two keeplock inmates out of their cells at the same time when the procedure was to secure one inmate before letting the other one out (Claim ¶14 [A]). Claimant alleges that such officials showed a "deliberate indifference" to claimant's safety and welfare because they had knowledge of an impending assault (Claim ¶ 14 [B]). Claimant further alleges that he received inadequate and delayed medical treatment for the injuries he sustained from the assault by inmate Powell. During trial, claimant also maintained that he received unjust Special Housing Unit (SHU) time because of a fighting infraction (Exhibit B within Exhibit 1), which was ultimately reversed by Donald Selsky, the Director of Special Housing/Inmate Disciplinary Program (Exhibit 4).
Exhibit 8, a sworn affidavit from another inmate, is not admitted as it is hearsay.
Defendant did not raise sovereign or governmental function immunity as an affirmative defense in its Answer or Amended Answer. At the end of the trial, defendant raised the defense of immunity pursuant to Arteaga v State of New York, 72 NY2d 212 (1988), arguing that the actions of administrative hearing officers and other employees of the Department of Corrections and Community Supervision (DOCCS) regarding quasi-judicial determinations are immune from liability. Defendant never asserted governmental function immunity with regard to the discretionary actions of correction officers in managing and controlling inmates.
At the trial, claimant testified that he notified prison authorities on March 23, 2005, that he was informed that two inmates planned to come into his cell on March 28, 2005 to take his personal belongings and to do bodily harm to him (Exhibit A within Exhibit 1).Claimant was interviewed by Sergeant Burgess about the potential of an attack, but claimant refused protective custody (Exhibit D).Claimant testified that he refused protective custody because the inmate who allegedly was to harm him was in protective custody and claimant did not want to be near him. Claimant requested that he instead be moved (Exhibit A within Exhibit 1). His request to be moved was denied (Exhibit E). Claimant testified that on the date of the subject incident, he had been let out of his cell and was on his way to the showers, when inmate Powell, who had showered earlier, came out of his cell and attacked claimant.
Lieutenant James Huff testified that screened protective custody inmates perform services in F-3, e.g., serving meals, to those in keeplock or protective custody.
Exhibits D-F are admitted as business records of DOCCS.
According to the testimonies of claimant, Correction Officer Christopher Hale and Correction Officer Paul Wagner, the shower procedure was to let one inmate out at a time. No two inmates should have been out of their cells at the same time.
Correction Officer Hale, who was a roving officer on F-3 at the time of the incident, testified that due to wear and tear of the locks on the cell doors, the handles that lock the cell doors do not always operate in the proper manner. The lever of the cell door handle should be in the upright position to lock the cell door. However, sometimes these levers only move three-quarters of the way to the up position, thus the doors are not locked. He testified that he "sees this all the time". He testified that inmates close their own cell doors, although in certain situations the correction officers will do so.
Correction Officer Wagner testified that inmates can rig their cell doors with magnets or strings to prevent locking. He also testified that inmates close their own cell doors and that only in certain situations will correction officers do so. Correction Officers check the cell doors on security rounds. In March 2005, a lighting system that indicates whether a cell door is open or closed was not in place. In Exhibit C, a TO/FROM Memorandum to Lieutenant Gunderman, Correction Officer Wagner wrote:
"While conducting showers on F-3 Division C.O. Hale was securing inmates in the shower and I C.O. Wagner was running the Lock Box. Inmate Powell was returning from the shower to his cell and closed his door. It appeared to lock but did not. Inmate Lewis was then let out for a shower and started down the Tier. Inmate Powell opened his cell door and ran down the Tier and punched Inmate Lewis in the head/face area..."
Lieutenant James Huff testified that he reviewed the separatee or enemies list, a document generated by DOCCS, listing inmates who should be separated for the health and safety of the inmates. If an inmate is on the list, either he or the other inmate would be moved. In March 2005, inmate Powell and claimant were not on each other's list.
Claimant testified that he did not receive prompt and adequate medical care for the injuries sustained from the attack by inmate Powell. Although claimant initially refused medical treatment after the attack (Exhibit A), according to his testimony on cross-examination, he was seen by a nurse on the day of the incident and the following day. He received only cold compresses and aspirin from the nurse. He filed a grievance complaint requesting an appointment with an ophthalmologist (Exhibit C within Exhibit 1), but he did not pursue that grievance because a physician came to his cell and then ordered x-rays. However, he did not have the x-rays because he was transferred to Southport Correctional Facility (Southport). After spending three weeks at Southport without obtaining x-rays, he filed another grievance (Exhibit D). On June 6, 2005 he was sent for x-rays which indicated some deformities of the left zygomatic arch and orbital floor. A June 9, 2005 CAT scan test indicated that he suffered a "left zygomatic arch fracture" (Exhibits 2, 3).
At trial, defendant objected to the admission of uncertified radiological reports, as a hospital record exception to the exclusion of hearsay. Claimant testified that he received these documents as part of his ambulatory health records from Southport. The Court receives the documents into evidence pursuant to Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014 (2d Dept 2008) which upheld the court's consideration of uncertified hospital records in conjunction with a police accident report describing the accident. This Court considers the radiological reports, issued in June 2005, in conjunction with claimant's testimony which the Court credits, that he was punched twice (on the left cheekbone and the bridge of his nose) and suffered eye swelling and pain, and the To/From Memoranda written by the correction officers that a fight ensued and claimant's left lip was cut [Exhibits A-C].
Claimant has established that defendant was negligent in its failure to protect him when it knew that inmates rig cell doors in a protective custody/keeplock area so they do not lock, and claimant informed the Superintendent that an attack was imminent on the date it occurred. Claimant is awarded $20,000.00 for the injuries he sustained.
LAW
I. Negligence
It is well settled that correctional facilities owe a duty of care to protect inmates from foreseeable attacks by other inmates (Vasquez v State of New York, 68 AD3d 1275 [3d Dept 2009], citing Sanchez v State of New York, 99 NY2d 247 [2002]).Unlike a member of the general public, an inmate in the care and custody of the State is, by virtue of his status, owed a duty of protection from foreseeable risk of harm (Sanchez v State of New York, 99 NY2d 247 [2002], supra; see Flaherty v State of New York, 296 NY 342 [1947]; Robinson v U.S. Bureau of Prisons, 244 F Supp 2d 57 [ND NY 2003]). It is also well settled that defendant is not an insurer of inmate safety and negligence cannot be inferred merely because an incident occurred (Vasquez v State of New York, 68 AD3d 1275 [3d Dept 2009], supra, citing Sanchez v State of New York, 99 NY2d 247 [2002], supra; Sanchez v State of New York, 36 AD3d 1065 [2007], lv denied 8 NY3d 815 [2007]; Smith v County of Albany, 12 AD3d 912 [3rd Dept 2004]). A correctional facility's duty is limited to providing reasonable care to protect inmates from risks of harm that were reasonably foreseeable, i.e., those of which that defendant knew or should have known (Vasquez v State of New York, 68 AD3d 1275 [3d Dept 2009], supra, citing Sanchez v State of New York, 99 NY2d 247 [2002], supra, and Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). " 'The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable.' " (Chiclana v State of New York, 2012 NY Slip Op 00926 [2nd Dept 2012], citing Codrington v State of New York, 19 AD3d 443 [2d Dept 2005]; Wilson v State of New York, 303 AD2d 678 [2d Dept 2003])."Custody and control of inmates and the maintenance of prison safety and security are the primary duties...of correction officers" (Cepeda v Coughlin, 128 AD2d 995, 997 [3d Dept 1987]).
Recently, in Valdez v City of New York, 18 NY3d 69 (2011), a police protection case, the Court emphasized that claimants must plead and prove that a special duty is owed to them and defendants must timely plead the governmental function immunity defense which, under McLean v City of New York,12 NY3d 194 (2009), shields discretionary acts by government employees from liability. However, because the instant case concerns an inmate-on-inmate attack in a correctional facility, this Court must be guided by Sanchez v State of New York, 99 NY2d 247 (2002), supra, which concerned an injured party within the State's custody (See FN 3 in Sanchez v State of New York, 99 NY2d 247 [2002], supra). Without addressing the merits or applicability of any such defense, the Court need not address whether defendant's action in the instant case was ministerial or discretionary under Valdez v City of New York, 18 NY3d 69 (2011) and McLean v City of New York, 12 NY3d 194 (2009), because defendant failed to plead a governmental function immunity defense.
DOCCS is statutorily authorized to manage and control inmates in this State (Correction Law § 112). Clearly, in the instant action correction officers, in carrying out the management and control of inmates in the F-3 section of Coxsackie Correctional Facility, were involved in a governmental, rather than a proprietary activity (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428 [2011]; Sebastian v State of New York, 93 NY2d 790 [1999]).
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The Court determines that the correction officers knew that inmates frequently rig the handle doors of their cells to prevent closure, and that the Superintendent was informed of a possible attack on claimant. Therefore, under Sanchez v State of New York, 99 NY2d 247 (2002), supra, and Vasquez v State of New York, 68 AD3d 1275 (3d Dept 2009), supra, Defendant owed claimant a duty to protect him from a foreseeable attack. The nature of this duty is inherent in the custodial relationship between them. A potential attack on claimant was reasonably foreseeable because defendant should have known, under these circumstances, that there was a heightened risk of attack upon claimant. The inexplicable failure to take the precaution of checking the locks on the cell doors before claimant was let out to take a shower, a "precaution[s] dictated by reason", is a breach of duty to claimant (Flaherty v State of New York, 296 NY 342, 347 [1947], supra). Claimant has established by a preponderance of the credible evidence that the lapse of such duty allowed inmate Powell to exit his cell to harm claimant.
II. Deliberate Indifference
The Court dismisses the cause of action alleging that the actions of prison personnel were carried out with "deliberate indifference", a standard of the Eighth Amendment to the Federal Constitution. A claim for injunctive and declaratory relief premised upon a violation of the Eighth Amendment is justiciable in Federal Court (Ahlers v State of New York, UID # 2011-015-521, Claim #105294 [Ct Cl, February 17, 2011], Collins, J., citing Davis v State of New York, 316 F3d 93,101 [2d Cir 2002]). A claim premised upon a violation of claimant's rights under the Federal Constitution may not be brought against the State in the Court of Claims (Brown v State of New York, 89 NY2d 172 [1996]).
III. Review of an Administrative Hearing
Notwithstanding that claimant failed to plead this claim, any alleged claim for time spent in SHU because claimant's Tier Hearing determination was reversed, would have been dismissed because a review of an administrative determination would be properly brought by an Article 78 proceeding in Supreme Court. The Court of Claims is a Court of limited jurisdiction and does not have the jurisdiction to grant strictly equitable relief (see Madura v State of New York, 12 AD3d 759, 760 [3rd Dept 2004], lv denied 4 NY3d 704 [2005]).
IV. Medical Malpractice/Medical Negligence
Claimant's cause of action for medical negligence and/or medical malpractice is also dismissed. Whether a cause of action sounds in medical negligence or medical malpractice, the question regarding whether the care given to claimant exacerbated his injuries is not a matter of common knowledge which the fact-finder could decide in the absence of expert testimony (Duffen v State of New York, 245 AD2d 653 [3rd Dept 1997]; Sabatino v Albany Med. Ctr. Hosp., 187 AD2d 777 [3d Dept 1992]). The fact that a claimant is proceeding pro se has no effect on his burden to present legally competent evidence which includes expert evidence (Duffen v State of New York, 245 AD2d 653 [3rd Dept 1997], supra).
"It is well settled that the State owes a duty to its incarcerated citizens to provide them with adequate medical care" (Kagan v State of New York, 221 AD2d 7, 8 [2nd Dept 1996]). To prove that the State failed in this duty, and instead, committed medical malpractice, an inmate must establish, by a preponderance of the evidence, that the State departed from the accepted standard of medical care, and that such a departure was a substantial factor, or proximate cause, of the inmate's claimed injury (see Turcsik v Guthrie Clinic, Ltd., 12 AD3d 883 [3d Dept 2004]). In the present case, claimant did not present any expert testimony regarding the timeliness and adequacy of his medical care. Accordingly, he has failed to prove this cause of action.
CONCLUSION
In view of the foregoing, the Court, upon review of the documentary evidence, oral testimony and the observance of the demeanor of the witnesses, awards claimant $20,000.00 for defendant's negligence. All motions not heretofore addressed are denied. 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 21, 2012
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims