Opinion
# 2011-049-103 Claim No. 110190
09-23-2011
SHAWN GREEN v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2011-049-103 Claimant(s): SHAWN GREEN Claimant short name: GREEN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 110190 Motion number(s): Cross-motion number(s): Judge: DAVID A. WEINSTEIN Claimant's attorney: Shawn Green, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: September 23, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Shawn Green filed this action on December 8, 2004, making various allegations concerning three unrelated incidents that took place during his incarceration in Southport Correctional Facility ("Southport").
In his trial brief, Green refers to five claims that are at issue, but that number appears only to reflect his subdivision of these three incidents.
First, Green contends that he was wrongly subjected to restraint and deprivation orders as a result of a fight with another inmate that took place in a stairwell at Southport on September 10, 2004 (the "September 10 Incident"). He also alleges that the State was negligent in supervising the inmates, and thereby allowing the fight to occur.
Second, he asserts that he ordered a book for $22.95 using funds from his prison account, but neither received the book nor was credited for the funds used for its purchase (the "Book Incident").
Third, Green alleges that he was overcharged for commissary services, and that prison authorities failed to adequately investigate the overcharge and did not return financial statements that would have proven this charge (the "Commissary Incident").
This case has a long procedural history. During pre-trial proceedings, claimant filed three motions to compel discovery, and two summary judgment motions, all of which were denied. He sought reconsideration of the ruling on one motion to compel prior to the conduct of trial, which has since been denied as well. Claimant also wrote the Court after the trial was scheduled, stating that he could not go forward without certain additional discovery. The Court declined to reschedule the trial, in light of the multiple efforts claimant had already made to compel production of the materials at issue.
Trial was conducted on this matter at Elmira Correctional Facility on July 14, 2011, and continued on August 17, 2011 via video conference.
At trial, Green testified on his own behalf. In regard to the September 10 Incident, he stated the following: On the date in question, he was incarcerated on level three of Southport. (Southport has three levels in its Progressive Inmate Movement System ["PIMS"], and prisoners at each level have different rights and restrictions. Those on level three have the greatest privileges and least restraint). Green was walking from his cell to the Special Housing Unit ("SHU") recreation area with a group of inmates. Correction officers were stationed at various points along the inmates' route. As the prisoners proceeded down a stairway, Green got into a physical "confrontation" with an inmate (identified as "Glover") standing next to him in line. He estimated that the two fought for between seven and ten minutes, until Officer David White arrived and separated them. In response to an inquiry from the Court as to the nature of the fight, Green said that he and Glover hit each other with their chains and handcuffs, and then fell on the floor, where they continued to struggle with one another. Green did not identify any specific motive for the fight, or indicate who had initiated it.
Green's trial brief provides the following account of how the fight commenced: "Somehow due to negligent supervision . . . claimant upon proceeding to ground floor in Southport C-Block SHU exercise (rear) stairwell, came in direct physical contact with his neighbor Glover . . . which evidently transpired into an altercation between the two spontaneously in any event" (Claimant Trial Br. at 5).
According to Green, after the incident he was taken down to the showers on a different level so that he could be separated from Glover, and then brought to a cell on level one in full restraints, where he remained. Thereafter, restraint and deprivation orders were placed upon him by Deputy Superintendent for Security Michael Sheahan. The restraint order stated that Green was to be handcuffed behind his back, and wear a waist chain and leg irons (Claimant Ex. 11). The deprivation order barred claimant from exercise, showers, cell clean up materials and haircuts (Claimant Ex. 12).
The restraint order was discontinued on October 11 (Claimant Ex. 13). The deprivation order was discontinued gradually, with claimant receiving showers again on September 20, haircuts on September 27 and exercise on October 3, 2004 (Id.). Green stated that he suffered "unnecessary pain" from the restraints he had to wear.
On cross-examination, claimant testified that he was "caught by surprise" by his altercation with Glover, as he had not had problems with that inmate before, and was aware of no danger from him or reason for concern prior to their conflict on that day. He also stated that there was no screaming or other noise that would have alerted the correction officers at their posts that a fight was taking place.
Claimant introduced into evidence the Southport Correctional Facility SHU Staff and Inmate Orientation Manual ("Orientation Manual") dated May 2003, and which the State acknowledged was in effect, as material to this proceeding, during the time period at issue (Claimant Ex. 21). The relevant sections of the Orientation Manual, in material part, are as follows:
"33. Deprivation Orders. An order depriving an inmate of a specific item, privilege or service may be issued when it is determined that a threat to the safety or security of staff, inmates or state property exists. Deprivation Orders must be authorized by the Officer of the Day (OD) or the Deputy Superintendent for Security Services or higher ranking authority. Initial approval may be given verbally but must be confirmed in writing within twenty four (24) hours with a copy to the Superintendent. Each Deprivation Order must be reviewed on a daily basis and may be renewed by the Deputy Superintendent for Security Services or, in his/her absence, the OD or Watch Commander or higher ranking authority. This review shall be documented by the reviewing Officer who shall initial and date the Order, adding any comments that are appropriate. . . .
34. Restraint Order. Any inmate assigned to a SHU who has displayed a history of assaultive behavior and/or who presents a threat to the safety or security of himself, other persons or state property may be placed under a Restraint Order by the Deputy Superintendent for Security or in his/her absence, the OD or higher ranking authority. A Restraint Order will be valid for no more than seven (7) days and may be renewed by the Deputy Superintendent for Security, or in his/her absence, the OD or higher ranking authority. A copy of the Restraint Order and any renewal thereafter must be forwarded to the Superintendent and the inmate within twenty four (24) hours. Restraints, as referred to in this order, may consist of handcuffs, waist chain and leg irons. All Level I inmates on a Restraint Order will be cuffed behind their back with a waist chain. Leg irons will also be utilized."
Green also gave the following testimony in regard to the Book Incident: In December 2003, he ordered a book from the Church of Light in California, for which he paid with a check for $22.95. He was informed by prison officials that the check had been cashed in January 2004.
Green introduced into evidence numerous documents relating to his efforts to retrieve the funds at issue from prison authorities. These included Green's administrative claim regarding his failure to receive the book, dated August 30, 2004 (Claimant Ex. 7). The claim indicated that the order was actually placed while claimant was incarcerated at Green Haven Correctional Facility. The document reflects both the initial rejection of the claim on the ground that the issue was one that should be checked with either Green Haven or the vendor, and the subsequent disapproval of Green's appeal without comment. A handwritten note from a counselor regarding Green's claim states that Green's check was cashed on January 12, 2004 (Claimant's Ex. 8).
Finally, as to the Commissary Incident, Green testified that his monthly statements revealed that he had been overcharged for commissary purchases, which he estimated at between $100 and $200. He filed a grievance about this, but according to Green, the matter was never investigated, he was never told what steps to follow, and the documents he submitted were never returned.
Green introduced various exhibits regarding this claim. These included grievances he had filed, regarding both the commissary account and the alleged failure of a counselor Patricia Klatt to return to him account statements Green says he provided to her (Claimant Exs. 1-5). Those documents contain Green's assertion that Klatt had told him that she had sent his documents back to him, and Green's denial that he had ever received them. A note dated August 30, 2004 states that claimant wrote to "Inmate Accounts" about the issue, and the facility would be unable to assist him, as the transactions took place at other prisons (Claimant Ex. 2). The initial administrative review of the grievance dated August 30, 2004 disapproved it on the ground that there was "no evidence of any wrongdoing by staff" (Claimant Ex. 5). This result was affirmed on administrative appeal by the Superintendent, who found that Green had not shown how DOCSor Ms. Klatt was responsible for any alleged harm (Id.), and by the Inmate Grievance Program Central Office Review Committee (Claimant Ex. 4). The latter denial specifically advised Green "to contact the Inmate Accounts Office and Commissary at the respective facilities to address his concerns" (Id.). There is no evidence in the record that Green took any steps to seek resolution from officials at any other prison.
On April 1, 2011, the Department of Correctional Services and the Division of Parole were merged into the Department of Corrections and Community Supervision. For sake of simplicity, the term "DOCS" is used to refer both the pre-merger and post-merger Departments.
Green called three additional witnesses, all DOCS employees.First, Green presented Klatt's testimony. Klatt stated that she has been a correctional counselor at Southport for almost 14 years, and interacts with inmates by meeting with them in their cells. Klatt's only recollection of the events at issue was derived from her review of the relevant paperwork, made in anticipation of her testimony. Klatt testified to receiving from Green a copy of his cancelled check for the book he ordered, and stated that she returned it to him. She did not recall taking the commissary statements from him. She indicated further that she inquired internally into whether Green's commissary records could be obtained at Southport, and was told that they were kept at "Comstock," a facility where Green had previously been incarcerated.Klatt had no recollection of reviewing any documents, or whether they reflected any discrepancies in Green's account statements.
At the initial proceeding, the parties indicated to the Court that there were outstanding subpoenas for these witnesses, dating from a trial that had been scheduled in this matter in 2009 but that had been adjourned. The State was allowed to present its sole witness out of order on July 14, and then the remaining witnesses called by claimant presented testimony on August 17, at the continuation of the trial.
This is presumably a reference to Great Meadow Correctional Facility, which is located in Comstock, New York.
Green also called as a witness Michael Sheahan, the Deputy Superintendent for Security Services at Southport, who since May 5, 2011 has served as the facility's Acting Superintendent. In September 2004, Sheahan was one of two correctional captains. Among other responsibilities, in this capacity he oversaw disciplinary matters.
Sheahan testified that deprivation and restraint orders at Southport are governed by Directive 4933, which provides specific rules for SHU facilities. That directive, which was not introduced into evidence, is (in Sheahan's words) "paraphrased" in sections 33 and 34 of the Southport Orientation Manual cited above. Sheahan confirmed that by regulation, mechanical restraints cannot be used for disciplinary purposes (see 7 NYCRR 250.2), and that restraint and deprivation orders cannot be issued arbitrarily and capriciously. He also testified, however, that the decision on whether to issue such orders is vested in the discretion of correction officials, and the nature of the particular restraint or deprivation imposed depend on a variety of factors.
Sheahan further testified to the privileges available on Southport's different PIMS levels. Prisoners on level three receive the greatest privileges, including additional clothing, limited rights to make telephone calls, three showers per week and the ability to make certain purchases at the commissary and to travel to and from exercise and visitation without a waist chain. Fewer privileges are afforded level one and two inmates. For example, level one prisoners are kept in restraints during exercise and visitation, receive fewer in-cell books and pictures, are able to take only two showers per week, and do not receive commissary privileges. All inmates (in the absence of a deprivation order) receive cleaning supplies for their cell three times per week.
Finally, Green called Officer David White to testify. White has been a correction officer at Southport since 1988, and was stationed there on September 10, 2004. In that capacity, he has served on the "recreation pool," which brings inmates to the recreation yard. White stated that there have been other fights in the stairwell besides the one at issue, but did not identify how many or when they took place. White also confirmed that there are no officers stationed on the stairwell itself while prisoners are moved into the yard, but only on the top and bottom thereof.
The State called as a witness Captain Harry David Hetrick. Captain Hetrick serves as an Acting Deputy Superintendent at Southport, and among other responsibilities he responds to inmate grievances and inspects the facilities. From 1998 through 2004, Hetrick served as a sergeant at Southport. He subsequently left the facility, but returned in 2007.
Hetrick testified to the process followed at Southport for the imposition of restraint and deprivation orders. When an officer believes such an order would be warranted, he calls the sergeant who serves as the watch commander that day, and who makes a recommendation to the officer of the day. Only the officer of the day or the Deputy Superintendent may authorize the order.
Hetrick said that the determination of whether someone is placed on a restraint is based on the nature of the incident and the inmate's disciplinary history. According to Hetrick, there is "no formula" for making this determination; it is "strictly a judgment call." A restraint will be maintained as long as the Deputy Superintendent believes it is necessary for the safety of the facility. This decision is reviewed on a daily basis, and the Deputy Superintendent must re-sign the deprivation and restraint orders each day for them to remain in force.
Finally, Hetrick testified (as did Sheahan and White), about the procedure followed by correction officers when Southport inmates are taken from their cells to recreation. Each inmate is met at his cell by two officers, and is placed in restraints as appropriate. They are then brought to the end of the gallery, where they are met by two additional officers, who pat frisk them and search them with a metal detector wand. One officer is also posted at the top of the stairwell, and one at the bottom, where inmates exit into the yard. An additional two officers supervise their activity in the yard.
Discussion
Each of the incidents at issue in this claim is addressed in turn below.
1. The Book Incident
As stated above, claimant contends that $22.95 was illegally taken from his account when he ordered a book that never arrived. By Green's own testimony, he was informed that the check containing payment for the book was ultimately cashed by the publisher. He has presented no evidence showing that (1) such information was false; (2) the prison acted in any wrongful or negligent way in deducting money from his account to pay for a book that he had ordered; or (3) the prison was responsible in any way for the fact that the book was not delivered. Further, while claimant faults the investigation that was conducted, he has not proven any causal relationship between that investigation and his loss of the money at issue.
In his closing argument, claimant invoked the doctrine of res ipsa loquitor to argue that the fact that the book was not delivered on its face demonstrates the State's liability. Even assuming the doctrine is contemplated under these facts, res ipsa loquitor applies only when the harm at issue is "caused by an agency or instrumentality within the exclusive control of the defendant" (Morejon v Rais v Const. Co., 7 NY3d 203, 209 [2006], citing Corcoran v Banner Super Mkt., 19 NY2d 425 [1967]). That is just not the case here. The book at issue was to be sent, according to claimant, from the publishing house, via the Post Office or some other carrier. The allegations underlying this claim are as consistent with negligence by one of these other parties as they are with the prison being at fault. Res ipsa loquitor, therefore, does not apply.
Claimant has the burden to prove the State's liability by a preponderance of the credible evidence (Rinaldi & Sons v Wells Fargo Alarm Serv., Inc., 39 NY2d 191, 196 [1976]). He has not demonstrated any wrongdoing by the State in regard to this incident, and has failed to meet that burden.
2. The September 10 Incident, and the Resulting Orders
Claimant makes two assertions of wrongdoing by the State regarding his confrontation with inmate Glover on September 10, 2004. First, he blames the State's negligence for the incident itself, and the resulting restraints and deprivations imposed on him. Second, he alleges that the restraint and deprivation orders were, themselves, illegally imposed and continued.
In regard to the State's liability for the fight itself, Green has failed to show that the fight was reasonably foreseeable, i.e. that the State "knew or had reason to know" that he would be assaulted by his fellow inmate (Sanchez v State of New York, 99 NY2d 247, 255 [2002]; see also Gangler v State of New York, 302 AD2d 964, 964-965 [4th Dept 2003]). Since such proof is necessary to establish the State's negligence, his claim must fail in this regard. The only evidence on which claimant bases his contention that his altercation with Glover was foreseeable is the testimony of Officer White that there had been other fights on the stairwell, although White was unable to say how many and when they occurred. In the absence of any such details, the mere presence of other fights in the same location did not render the September 10 Incident reasonably foreseeable (see Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009] [prior assault on same claimant at same location did not render attack at issue reasonably foreseeable, absent sufficient detail as to why earlier event provided prison authorities with notice that it would recur]).
Claimant acknowledged in his testimony that he had no prior indication that a fight was brewing between himself and Glover; indeed, he was "surprised" by it. Much less did he provide any evidence that he warned prison authorities that this might occur, or that they had knowledge from any other source. Nor did he introduce any evidence that the State was negligent in failing to supervise the inmates. The mere fact that claimant may have been out of the sight of the correction officers at any point is not sufficient to establish liability(see Sanchez, 99 NY2d at 255 n 4; Padgett v State of New York, 163 AD2d 914, 915 [4th Dept 1990]).
I cannot credit claimant's testimony that the fight lasted seven to ten minutes, during which time no correction officers arrived. The fight occurred while a large group of prisoners in disciplinary housing was en route to the recreation yard, with numerous correction officers stationed at various points around them. It is simply not conceivable that two prisoners would engage in a physical battle, ending with them rolling on the floor, while no officers took notice despite the halting of the flow of prisoners to the yard for over seven minutes.
Further, claimant has presented no evidence that he was injured in the fight with Glover, or even that Glover initiated the conflict. Rather, he contends that the State was negligent in failing to prevent the fight in which he took part, and because claimant was disciplined as a result of this conflict, the State is therefore responsible for such discipline, and must pay damages to compensate him for the consequent deprivation he suffered. So long as the State acted under the authority of and in full compliance with the governing statutes and regulations in imposing the restraints, though, it has absolute immunity from suit (see Arteaga v State of New York, 72 NY2d 212, 214 [1988]). The State simply cannot be held liable in damages for failing to stop claimant from violating prison rules, and for imposing lawful restraints on him as a result of that violation.
For all these reasons, Green cannot prevail on his negligent supervision claim.
In regard to the specific challenge to the restraint and deprivation orders, discretionary governmental actions may not serve as a basis for the State's liability (see Arteaga, 72 NY2d at 216 [State retains immunity for "those governmental actions requiring expert judgment or the exercise of discretion"]). As both the testimony adduced at trial and the Orientation Manual make clear, the decision as to whether to place a restraint or deprivation order is left fully within the discretion of prison officials. Thus, the manual states (emphasis added) that a deprivation order "may be issued when it is determined that a threat to the safety or security of staff, inmates or state property exists," and a restraint order "may be placed" on an inmate that meets broad criteria, including posing a threat to the safety of himself and others. The State cannot be held liable for the manner in which prison officials exercise this discretion (see Lamage v State of New York, UID No. 2006-041-508, Claim No. 108580, Milano, J. [Dec. 11, 2006] [dismissing claim challenging restraint of prisoner where State "lawfully used its discretion in choosing to restrain claimant with mechanical restraints"]).
Green also asserted at trial and in his trial brief that the orders were a violation of 7 NYCRR § 250.2(h), which bars the use of mechanical restraints "for disciplinary purposes," and of 7 NYCRR § 305.2(a), which provides that inmates in a SHU may be subject to a restraint order "when it is determined that a threat to the safety or security of staff, inmates or State property exists." Even if the Court had the power to evaluate the underlying purposes of the discretionary acts undertaken by prison officials here - and for reasons stated above, it does not - claimant has failed to meet his burden of showing that the relevant orders ran afoul of these standards.
Green argues that the real purpose of the restraint and deprivation orders was punitive, which contention he sought to support at trial by pointing out that: (1) certain elements of the orders were lifted during the period that others were still in effect; (2) no real security danger was present once he was separated from Glover; and (3) aspects of the deprivation order, such as the ban on cleaning supplies and limitation on showers, have no legitimate penological purpose. These arguments do not prove his claim. The staggered lifting of particular restrictions does not demonstrate their punitive nature; if that were the case, prison officials would be compelled to impose and lift all such restrictions in one fell swoop, rather than tailoring them to particular circumstances. In regard to any continuing danger from Green, Sheahan noted that such a determination would depend on Green's interactions with Glover, with other inmates and with staff. This kind of discretionary decision, as to the need and scope of restraints that are necessary to ensure the security of the personnel and prisoners at the SHU, is precisely the sort that the caselaw has made clear is not appropriate for second-guessing by this Court. As to the third argument, the cited regulations only prohibit the use of mechanical restraints for punitive purposes; they do not so limit deprivation orders.
In sum, the discretionary decisions at issue are not subject to review by this Court, and in any case claimant has not demonstrated that they were in any way illegal or improper.
3. The Commissary Incident
The precise contours of Green's assertion in regard to his commissary account are not altogether clear. The description of this cause of action in Green's claim is, in its entirety, as follows: "Claimant provided P. Klatt, Correction Counselor, with several documents for inquiring into funds embezzled from Claimant account that were not returned. See, Facility Claim #630-172-04" (Claim ¶ C). At trial, Green expanded on this allegation, asserting that his commissary account was overcharged, and that when he presented prison authorities with documents demonstrating this, they failed to properly investigate his complaint and then did not return the documents he had given them.
As noted, Klatt testified that she had no recollection that claimant had given her any documents, and said it would not have been her normal practice to take them from him. Green's administrative complaints state that he asked her for these documents, and while she said that she had mailed them, he had never received them.
Even assuming that Green provided the commissary statements to Klatt, and they were not returned to him, he cannot prevail on this claim. Green has, neither through his testimony or other documentary evidence, provided any facts at all to support his allegation that the account statements reflected an overcharge. Absent such evidence, claimant is left with the contention that the Court should rule in his favor because defendant has not provided him with the evidence he needs, and failed to investigate his claim adequately (see Claimant Trial Br. at 7 [claimant unable to "substantiate allegations" without "documentary proof"]).
Prior to trial, however, claimant sought the very documents at issue - commissary receipts and statements from October 2000 and May 2001 - in a discovery request made to defendants in March 2009. Defendant indicated that it did not have such documents, as it only maintained these records for five years. In denying a subsequent motion to compel their production, the Court "accept[ed] this response" (Green v State of New York, UID No. 2009-032-153, Claim No. 110190, Motion No. M-76739, Hard, J. [Oct. 13, 2009]). Following a second motion to compel, in which Green sought all documents concerning his grievance about the commissary charges, the Court found that "there is no indication that any delay in providing follow up responses to the [claimant's request] was willful, contumacious or in bad faith" (Green v State of New York, UID No. 2011-032-022, Claim No. 110190, Motion No. M-79414, Hard, J. [June 27, 2011]). It therefore denied the motion, and declined Green's application that defendant be sanctioned.
Thus, claimant essentially seeks what the Court has already denied: a sanction against defendant for its purported failure to produce the documents at issue, in the form of a finding of liability notwithstanding the absence of proof for his claim. In light of the Court's prior rulings, and in the absence of any evidence of willful misconduct on defendant's part, or any violation of a court order on disclosure, I cannot find that any such sanction is warranted (see CPLR § 3126 [sanction for inadequate disclosure may be imposed when party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article"]).
As to Green's contention that the prison failed to adequately investigate his claim, his own exhibit indicates that he was informed at the time that he needed to pursue this issue at other facilities (Claimant Ex. 4). He has presented no evidence that he did so. Thus, there is no proof of any causal relationship between the investigation and claimant's inability to obtain recompense for the purported overcharge.
In light of the foregoing, the claim is dismissed in its entirety.
All motions on which the Court may have reserved decision or which were not previously determined are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
September 23, 2011
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims