Opinion
# 2020-029-026 Claim No. 125956
02-27-2020
RAYFORD ELLIS v. THE STATE OF NEW YORK
RAYFORD ELLIS, PRO SE LETITIA JAMES, ATTORNEY GENERAL By: Jeane L. Strickland Smith, Assistant Attorney General
Synopsis
The pro se claim by inmate at Downstate Correctional Facility alleged negligence arising from correction officers' failure to obtain claimant medical attention for claimant. After a video trial, the court found the State 100% liable for simple negligence, based on the officers' failure to act for four days in spite of claimant's repeated requests for emergency help, continued loss of blood, and readily apparent deteriorating condition. The court awarded claimant $10,000 in damages.
Case information
| UID: | 2020-029-026 |
| Claimant(s): | RAYFORD ELLIS |
| Claimant short name: | ELLIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125956 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | RAYFORD ELLIS, PRO SE |
| Defendant's attorney: | LETITIA JAMES, ATTORNEY GENERAL By: Jeane L. Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 27, 2020 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The pro se claim seeks damages for pain and suffering resulting from the failure to provide claimant access to medical care at Downstate Correctional Facility ("Downstate") from January 31 to February 3, 2014. The claim alleges negligence and deliberate indifference by correction officers who did not obtain medical attention for claimant in spite of his requests for emergency sick call, his complaints of rectal bleeding and abdominal pain, and his deteriorating condition. A trial was held on January 23, 2020.
Claimant represented himself and testified on his own behalf. Claimant's Exhibits 1-3 were admitted on stipulation. Claimant testified that he was transferred to Downstate around January 26, 2014. When he arrived he was placed in a dorm. Officers greeted them and said, "We know who you are. We know why you're here and we don't want any rape-ohs [phonetic spelling], molesters, sex offenders at this bubble. If you have a problem, we don't want to hear about it." The second day claimant complained of abdominal pain, passing blood, and spitting up blood. He went to the officer and was told he needed to put in a sick call slip for Sunday. He said it was an emergency because he was passing blood. He was told to leave the bubble and go back to his cell. During the next shift, he told the midnight officer that he needed to see a doctor. He felt like he had a fever, he was passing blood, and he had abdominal pain. He was told "I don't do emergency sick calls at midnight. Ask the morning officer." The next morning, claimant asked the officer about sick call. Claimant said it was an emergency as he was passing blood. He was told there was no sick call on Friday and to put in a slip for sick call on Sunday night. He continued to tell officers at each shift about his symptoms, and to ask about emergency sick call, and was told to put in a sick call slip on Sunday night.
There is no transcript of the trial. The recitation of claimant's testimony is based on the audio recording.
On Sunday night, he put in a sick call slip. On Monday morning, C.O. Ulysse called them out of their cells for chow. When he went to line up, he told them he was not feeling well and had pain in stomach. While they were doing the count, he passed out. C.O. Argibay came to the cell and called him for sick call. Claimant said he did not think he could go, that he felt faint. C.O. Argibay said that if claimant did not walk to sick call, he would put it down as a refusal and would not go. Claimant walked and after several minutes of stop and go, he went into sick call. After being called in, he lay down and the nurse took his vitals. His blood pressure was so low clinicians were concerned that his heart might stop. He was called to the infirmary and taken on a stretcher by several inmates. Claimant's vitals were taken again and the doctor asked him if there was anyone to notify. They called for the chaplain to administer last rites. The chaplain asked if there was anything she could do to call family. He was transported to St. Luke's Cornwall Hospital ("St. Luke's") where an emergency procedure was performed to stop the bleeding. He received five units of blood and was inpatient for five days. He continued to have pain and to pass blood. He was then sent back to the facility, where he was in the infirmary for two more days. He was then released back to general population. After clamant filed a grievance, he was transferred out of the facility to Franklin Correctional Facility, where he followed up with a grievance.
Claimant testified on cross-examination that after he was transferred to Downstate around January 24, 2014, they did an intake on the 24th or 25th at which time they asked questions about the medication he was taking and his prior medical history. They also did blood and urine tests. He did not have stomach issues previously, and he had no symptoms at that time. His symptoms started around January 26, 2014. On reviewing his notice of intention (Defense Exh. B), claimant acknowledged he alleged that on January 31, 2014, he reported to his block officer, C.O. Santos, that he was sick and passing blood and needed to see a doctor. He admitted he could be wrong about the name "Santo." Claimant explained that on weekends and holidays there is only emergency sick call, for which a sick call slip is not necessary. The officer determines if it is an emergency or not. When a sick call slip is put in, an inmate is put on the list the next day. If an inmate asks to go to emergency sick call and it is determined not to be an emergency, he can be written up and disciplined. On February 1 or 2, he asked to speak to a Sergeant and he was informed that the only way he would speak to a Sergeant was by going to the Special Housing Unit. There are three shifts per day, and he spoke to officers on every shift.
Claimant's Exhibit 1 is a copy of the August 20, 2014 decision by the Central Office Review Committee ("CORC") on claimant's final appeal from the denial of his grievance. The CORC concluded there was insufficient evidence that the staff denied claimant medical attention. The CORC based their decision on to-from memoranda in the record by C.O. Ulysse and C.O. Argibay (see Exh. A).
Claimant's Exhibit 2 contains a copy of his records from St. Luke's. Initial comments in the Emergency Room Note provide:
"45 yo M, coming in from correctional facility, patient having black stools 1/31, on 2/1 and 2/2 having blood clots per rectum mixed with black stools. FOBT +, black stool in rectum, no hx of GIB in the past, BP was low at correctional facility, 70/50 and was tachy, 2 lines placed and given 1 L NS, now normotensive."
Additional notes provide that claimant was "initially hyptensive, with BRBPR in facility," "hgb 16 on 1/24/14, hgb 7.1 today, will transfuse 2 units PRBC. will admit here, unstable for transfer especially in inclement weather," and "give 4 units PRBC" after "Consult [. . .] Comment." Claimant's condition on admission is noted as "Critical" and the primary impression was noted as "Upper gastrointestinal hemorrhage." Notes pertaining to claimant's "History and Physical Examination" provide that he "has b having GI bleeding for the last 3 days, initially melena, . . . then frank rectal bright red blood today at some point getting dizzy, and feeling weak. States he almost passed out." There are also references to transfusions and anemia from blood loss.
Claimant's Exhibit 3 contains a copy of claimant's ambulatory health records and other medical documents from Downstate. The records for February 3, 2014 show that Dr. Malvarosa sent claimant to St. Luke's by ambulance, claimant's blood pressure was 70/50, claimant was bleeding rectally, and stated it had started "about a week ago." A "Family Notification Sheet" shows that on February 3, 2014, claimant was receiving "emergency treatment" for "rectal bleeding," he requested calls to Michael and Thomas Ellis, and calls were made by Rev. Brown and Dr. Malvarosa. A Request and Report of Consultation signed February 18, 2014, shows it was determined that claimant had H. Pylori and a bleeding vessel in a duodenal ulcer, which had been clipped. He experienced acute blood loss anemia, was "started on Biaxin/Amox/Prilosec but still has occasional dyspepsia and nausea."
The court admitted defense Exhibit A, a certified copy of claimant's grievance documents, to-from memoranda, logbook pages for February 2 and 3, 2014, and the sick call policy.
Exhibit A contains the to-from memos on which the CORC based their decision finding insufficient evidence of negligence by the officers. C.O. Ulysse states in his memo that claimant approached him at breakfast and said he felt unwell, dizzy and light-headed, but did not indicate it was an emergency. The officer "contacted medical as soon as possible." In C.O. Argibay's memo, he denies that claimant was forced to walk in a weakened state to sick call. He states that he escorted claimant, who "appeared to walk without difficulty." The logbook entries for February 3, 2014 that concern claimant provide: "Not feeling well. Kept lock in cell. Will bring feed up tray [. . .] 8:19 Took feed up tray to 6-Ellis [. . .] getting up from bed inmate fell to floor. I entered cell + assisted him up and put food tray on his bed [. . .] 9:40 Argibay escorted 6-Ellis
[. . .] to Emergency to make sure inmate don't pass out [. . .] 12:45 [. . .] Hospital, 6-Ellis."
"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]; see Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]; Kagan v State of New York, 221 AD2d 7, 11 [2d Dept 1996]). The claim here alleges deliberate indifference and the failure to provide adequate medical care, but the allegations do not involve diagnosis, treatment or the failure to follow a physician's instructions. Rather, the gravamen of the action concerns the alleged failure to exercise ordinary and reasonable care, or simple negligence. Claimant pleaded and sought to prove that correction officers at Downstate breached the State's duty by failing to take him to emergency sick call for three days, in spite of his repeated requests, his patently serious symptoms and his obviously worsening condition. Once claimant was seen by the nurse at sick call and the doctor in the infirmary, they recognized his condition as critical and acted admirably swiftly and correctly to provide him with the proper care. The question before the court does not concern any actions or decisions made by medical personnel, and will be decided based on the principles of common law negligence.
It is well settled that in order to establish a prima facie case of negligence, " 'a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff' " (Comack v VBK Realty Assoc., Ltd., 48 AD3d 611, 612 [2d Dept 2008], quoting Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 [2d Dept 2005] [internal quotation marks and citations omitted]). Claimant bears the burden of proving his case by "a fair preponderance of the credible evidence" (Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976]).
The court found claimant to be a credible witness. The State did not contest his testimony that the on-duty housing unit officers make the initial decision whether to act on an inmate's emergency sick call request. It is unreasonable to expect medical diagnostic proficiency from correction officers. However, certainly there are patently serious conditions and circumstances warranting emergency action, or at least a telephone call to a member of the medical staff. Claimant testified that beginning on Thursday, he asked to go to emergency sick call and he informed officers at each shift of his symptoms, only to be rebuffed and told to put in a sick call slip on Sunday night for the next day. The medical records and ambulatory health records corroborate claimant's testimony that he was bleeding rectally, spitting up blood and had abdominal pain beginning around January 31, 2014. By February 3, four days later, he was in critical condition with dangerously low blood pressure and significant blood loss. The medical staff at Downstate called for claimant to be given last rites shortly after he was finally taken to sick call. At the hospital, it was determined he was anemic from blood loss and required a transfusion with several units of blood. A bleeding ulcer was eventually diagnosed and treated.
To expect such diagnostic acumen from C.O.s is facially unreasonable. It could be ameliorated by giving them a set of protocols defining "emergency symptoms." --------
The State did not call any witnesses to dispute claimant's testimony, and the grievance records they submitted carry little weight. The original disposition concludes that claimant first asked for help on February 3. Yet it is based on a to-from memorandum by C.O. Argibay that is not credible. He writes that claimant was not forced to walk to sick call in a weakened state and appeared to walk "without difficulty" (Exh. A). Yet the logbook pages submitted by the State contain notes that approximately an hour earlier claimant had collapsed in his cell and C.O. Argibay escorted him to emergency to make sure he did not pass out (Exh. A). The disposition is also based on a memorandum by C.O. Ulysse that in fact supports claimant's testimony about feeling sick and lightheaded on February 3 (Exh. A). Both memoranda are limited to the day of February 3, and the State chose to submit copies of logbook pages for only February 3 and part of February 2. The disposition does not specify anything further that was done to investigate the grievance. It is also evident that the critical nature of claimant's actual condition by February 3 was not considered at any level of the grievance.
Claimant's testimony is sufficient to establish the housing officers acted unreasonably, and it is inconceivable to the court that claimant's deteriorating condition was not readily apparent. Whatever the source of the officers' refusal to call for emergency sick call, it breached the State's duty to provide reasonable and adequate care to inmates in its charge. As for whether the delay proximately caused injury to claimant, he alleged and proved the delay resulted in substantial blood loss and anemia, transfusions of blood, significant pain and suffering, and considerable emotional distress. The temporary nature of the blood loss and anemia, and the lack of expert medical evidence about the possibly longer-lasting effects, militates against a substantial award. However, the record established that claimant was in mortal danger, and was aware of it, as a result of the State's negligence.
Upon review of the relevant legal principles and their application to the facts presented, and after considering all the evidence, including the exhibits received into evidence and claimant's testimony, the court finds that claimant presented sufficient evidence to establish the State was negligent by a preponderance of the credible evidence.
Finally, this court lacks subject matter jurisdiction over a claim under the Federal Constitution which must be brought in federal court or in New York State Supreme Court pursuant to 42 USC § 1983 (see Brown v State of New York, 89 NY2d 172, 185 [1996]). Consequently, the claim for "deliberate indifference," which relates to the Eighth Amendment right against cruel and unusual punishment (see Farmer v Brennan, 511 US 825, 829 [1994]), is beyond this court's jurisdiction (see Zaire v State of New York, UID No. 2015-032-006 [Ct Cl, Hard, J., Dec. 7, 2015]).
The court finds the State 100% liable for negligence, dismisses the claim for deliberate indifference, and awards claimant $10,000 in damages for conscious pain and suffering, inclusive of interest. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2). The Chief Clerk is directed to enter judgment accordingly.
All motions still pending are denied.
February 27, 2020
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims