Opinion
# 2018-015-142 Claim No. 122260 Claim No. 122655 Claim No. 123479 Claim No. 123480
08-14-2018
VERNON A. JONES v. STATE OF NEW YORK
Vernon Jones, Pro Se Honorable Barbara D. Underwood, Attorney General By: Douglas Kemp, Esq., Assistant Attorney General
Synopsis
Two of former inmate's claims alleging medical negligence were dismissed for failing to present expert medical evidence and two other claims alleging cruel and unusual punishment under the NYS Constitution were dismissed because the conditions of claimant's confinement did not constitute a sufficiently serious denial of the minimal civilized measure of life's necessities and were justified by penological objectives.
Case information
| UID: | 2018-015-142 |
| Claimant(s): | VERNON A. JONES |
| Claimant short name: | JONES |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122260, 122655, 123479, 123480 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Vernon Jones, Pro Se |
| Defendant's attorney: | Honorable Barbara D. Underwood, Attorney General By: Douglas Kemp, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 14, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Trial of the following four claims was held on May 17, 2018.
Claim Number 122260
The claimant testified that on January 27, 2011 he was in his cell at Great Meadow Correctional Facility (Great Meadow) when he was requested to come to the front of the gallery. Claimant complied with the instruction and spoke to Correction Officer J. A. Smith who requested that claimant provide him a copy of his medical permit authorizing his possession of a knee brace and cane. Claimant produced his permit which Correction Officer Smith informed him had expired. In this regard, the officer advised claimant that he had been instructed to seize any medical devices possessed by inmates without a valid medical permit. An area supervisor, Sergeant Matthew Sabo, was called to the scene and reviewed claimant's permit. He again advised the claimant that new permits had been issued and that his current permit had expired. As a result, claimant's cane and knee brace were taken from him and he was advised to request sick call to secure a renewal of his permit. Claimant submitted a sick call slip the same evening and returned to his cell. The next morning claimant attended sick call at the facility infirmary and was provided a cane. He returned to the medical department later that morning and was provided a brace and given a temporary permit authorizing his possession of both items. Claimant argued at trial that permits for the use and possession of his cane and knee brace had been effective "until further notice" since at least 2008.
All quotes are taken from the audio recording of the trial unless otherwise noted.
On cross-examination the claimant testified that he attended sick call at 6:00 a.m. on January 28, 2011, at which time he was given a cane. He returned to sick call at approximately 9:30 a.m. and was provided a knee brace and temporary permit. He acknowledged that he was without use of either his cane or knee brace for approximately 15 hours. Claimant agreed that he understood the need for a valid permit to possess a brace, cane or other medical device while incarcerated, but argued that his permit had not expired but was effective "until further notice".
Claimant called Jason A. Smith as a witness. Officer Smith was a desk officer in E Block where the claimant was housed on January 27, 2011. He testified that he had been instructed by his supervisor, Sergeant Sabo, to seize medical equipment from any inmate who possessed the equipment pursuant to expired permits. Officer Smith spoke to the claimant, determined that he possessed his cane and knee brace pursuant to a permit which had expired, and therefore seized both items and instructed the claimant to request sick call so that he could secure a new permit. Prior to seizing claimant's cane and knee brace the officer contacted the Great Meadow medical unit to confirm that claimant's permit was expired and had not been renewed.
On cross-examination Officer Smith testified that no inmate may possess a cane or knee brace without a valid permit. He related that all block officers maintain a permit logbook which lists the expiration date for medical permits issued to inmates within their respective blocks. He identified the document contained on page 2 of Exhibit B as the permit he seized from the claimant on January 27, 2011. The permit, issued on April 29, 2010, indicates in two places that the permit authorizing claimant's possession of the knee brace and cane is to be "effective until October 28, 2010" (Exhibit B, p. 2).
Claimant next called Sergeant Matthew Sabo who testified that he was the E Block sergeant at Great Meadow Correctional Facility on January 27, 2011. Sergeant Sabo, who was promoted to lieutenant in 2012, testified that medical permits are only valid for 365 days pursuant to a policy implemented in January 2010 in response to inmates with expired permits either altering medical equipment and devices or utilizing them as weapons.
On cross-examination, Sergeant Sabo stated that renewal of medical permits is the responsibility of individual inmates and confirmed that the permit issued to the claimant on April 29, 2010 expired on October 28, 2010. On redirect examination he explained that medical permits expire one year from the date they are issued unless a different expiration date is stated. In the case of claimant's cane and knee brace, the permit by its own terms expired on October 28, 2010.
Finally, claimant called Janet Collins who was the Nurse Administrator at Great Meadow in January 2011. Ms. Collins testified that in the event an inmate's medical permit is found to have expired the facility policy is to confiscate the medical equipment until a new permit is issued. She also testified that permit renewal is the sole responsibility of the affected inmate. On cross-examination, the witness testified that medical permits are issued by individual physicians who also establish the permit expiration date.
Claim Number 122655
Claimant testified that in March 2012 he was instructed by correction officers to pack his property and prepare for a transfer to Downstate Correctional Facility (Downstate) in advance of an orthopedic consultation. Claimant explained that he had a metal rod in his femur which needed to be removed so that he could undergo a full knee replacement. According to the claimant, when he appeared for his orthopedic consultation, Dr. Holder inquired where the claimant's X-rays were. Claimant contends that correction officers failed to ensure that his X-rays were transported with him, and that Dr. Holder stated he could not treat the claimant without them. On cross-examination the claimant testified that he saw Dr. Holder for a consultation approximately one month after the events related above.
Claimant called Mary Harris who testified that in March 2012 she was an RN2 at Great Meadow. According to Ms. Harris, in the event an inmate is to be seen for an examination at an outside medical facility, the physician conducting the examination instructs prison medical staff regarding the medical information and documents he requires. X-rays would be sent with the inmate only if the physician requested them. Reviewing Exhibit C, Dr. Holder's consultation report, she testified there is no indication that Dr. Holder requested that claimant's X-rays be provided for use during the consultation. Exhibit C also indicates that the claimant saw Dr. Holder on April 12, 2012, that his X-rays were available at that time, and that Dr. Holder recommended that the surgery to remove the rod and screws in the claimant's left femur occur three to four months thereafter.
Claim Number 123479/123480
Claimant testified that on September 6, 2013 he was transported to Albany Medical Center for the purpose of undergoing a procedure to remove a bunion. After arrival at Albany Medical Center he was placed in a secure holding area on the hospital grounds. Claimant testified that in addition to his bunion, ambulation was made difficult because he was also wearing a knee brace. He advised the correction officers in charge of the secure holding area that walking in restraints was "incredibly difficult" and requested that his leg chains be removed. The officers refused to remove his leg chains indicating that such was prohibited pursuant to applicable Department of Corrections and Community Supervision (DOCCS) policies. Later that day, following removal of his bunion, claimant was provided a single crutch to assist him in ambulating. Claimant's request that he be provided a wheelchair was denied.
The defendant called Matthew Sabo who retired from DOCCS as a lieutenant in 2015. He testified that all inmates are restrained by leg chains, waist chains and handcuffs while being transported to an outside medical facility. Members of the correctional facility medical staff determine whether an inmate to be transported requires the use of a cane, crutch or wheelchair. Once at the hospital or other outside medical facility, it is hospital staff who decides what assistive devices, if any, an inmate may require. Mr. Sabo testified that the determination whether to remove an inmate's restraints would be made by correction officers from Greene Correctional Facility, who administer the Albany Medical Center secure holding area.
Analysis
Claim number 122260 is premised on the contention that the defendant was negligent in confiscating claimant's cane and leg brace for a period of approximately 15 hours. The facts of this claim are similar to those in Knight v State of New York (127 AD3d 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015]). There, the claimant alleged he suffered injuries as a result of DOCCS' improper removal of his cane. The Appellate Division, Third Department, affirmed dismissal of the claim on the ground the claimant failed to present expert evidence demonstrating either common law negligence or medical malpractice. In doing so, the Court explained:
"Where an inmate alleges that defendant abdicated its duty to provide adequate medical care, he or she must present competent evidence demonstrating defendant's common-law negligence or that it departed from accepted standards of care and that such deviation was the proximate cause of the sustained injuries (see Lowe v State of New York, 35 AD3d 1281, 1282 [2006]). 'Whether the claim is grounded in negligence or medical malpractice, where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical testimony is a required element of a prima facie case' " (id. at 1435, quoting Myers v State of New York, 46 AD3d 1030, 1031[3d Dept 2007]; see also Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]).
Whether the decision to remove claimant's leg brace and cane in the instant matter deviated from the appropriate standard of medical care or caused or exacerbated his injuries are not issues within the ordinary knowledge of lay persons. Like the facts in Knight, claimant's failure to offer expert medical evidence establishing either a deviation from the applicable standard of medical care or that the removal of his cane was a proximate cause of his pain and suffering requires dismissal of the claim.
The absence of medical evidence on causation aside, even if the claim is construed to allege medical negligence, claimant failed to establish a violation of policy or protocol (Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]). The evidence adduced at trial establishes that a valid medical permit is required to possess certain medical devices, and that claimant's permit had expired. Claimant's testimony that his permit dated July 8, 2009, which stated that it was "to be effective until further notice", was valid and in effect at the time his medical devices were removed overlooks the permit issued on April 29, 2010, which expired by its express terms on October 28, 2010 (see Exhibit 10). Thus, the July 8, 2009 permit was clearly superceded by the subsequent permit, which had expired by the time the claimant's medical devices were confiscated. Mr. Sabo explained that because canes and certain other medical devices can be used as weapons, permits are required and must be periodically updated. As Nurse Administrator Collins testified, it is the inmate's responsibility to seek a medical appointment to obtain a permit renewal, which the claimant here failed to do.
The Court has reviewed claimant's exhibits marked for identification as 1, 2, 3, and 7 and sustains defendant's objection to their receipt in evidence as none of these exhibits are in admissible form (see CPLR 4518 [c]). Even if they were, however, these exhibits, consisting of memoranda establishing a change in procedure allowing inmates to retain their medical devices until they could be seen in the infirmary, would not change the result. Absent medical evidence that the removal of the claimant's cane and leg brace constituted a deviation from applicable standard of medical care or that the removal of these medical devices was a proximate cause of claimant's pain and suffering, the claimant failed to meet his burden of establishing defendant's negligence or malpractice as a matter of law. In addition, claimant presented no evidence of a violation of applicable protocols or policy as is necessary to establish a claim for ministerial neglect. Accordingly, claim number 122260 must be dismissed.
Claim number 122655 seeking damages for medical negligence arising from DOCCS' transport of the claimant to an outside medical facility without his medical records, X-rays, hearing aid batteries and left leg brace is subject to dismissal for the same reason as claim number 122260. The gist of this claim appears to be that the medical trip was a complete waste of time and resulted in a one-month delay in obtaining medical treatment. While the State has a fundamental duty to provide adequate medical care to inmates in its prisons without undue delay (Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]), here, claimant established nothing more than DOCCS' inefficiency and failure to properly facilitate his medical consultation. Absent medical proof that DOCCS' undue delay proximately caused or exacerbated his injuries, claim number 122655 must be dismissed.
Claim numbers 123479 and 123480 seek damages for cruel and unusual punishment under Article 1, § 5 of the New York State Constitution. The prohibition against cruel and unusual punishment "was designed to protect those convicted of crime" (Ingraham v Wright, 430 US 651, 664 [1977]). Claims alleging cruel and unusual punishment are evaluated by reference to whether the conduct alleged is, from an objective perspective, a "sufficiently serious . . . denial of the minimal civilized measure of life's necessities" (Farmer v Brennan, 511 US 825, 834 [1994] [citation and internal quotation marks omitted]) and whether the prison official has a "sufficiently culpable state of mind" which, in prison-conditions cases, "is one of 'deliberate indifference' to inmate health or safety" (Farmer, 511 US at 834 [citation omitted]; see also Scott v Smith, 104 AD3d 1029 [3d Dept 2013], lv denied 21 NY3d 860 [2013]; Rodriguez v City of New York, 87 AD3d 867, 868-869 [1st Dept 2011]; Tatta v State of New York, 19 AD3d 817, 819 [3d Dept 2005], lv denied 5 NY3d 712 [2005]). " 'The unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment' " (Hope v Pelzer, 536 US 730, 737 [2002], quoting Whitley v Albers, 475 US 312, 319 [1986]). Inflictions of pain that are "totally without penological justification" are unnecessary and wanton (Hope, 536 US at 737; see also Davidson v Flynn, 32 F3d 27 [2d Cir. 1994]). Thus, policies or regulations that impinge on a prisoner's constitutional rights are valid if they are reasonably related to legitimate penological interests (Matter of Bezio v Dorsey, 21 NY3d 93, 103 [2013]).
As the availability of an alternative avenue of redress has not been identified, claimant is not foreclosed from prosecuting his constitutional tort causes of action premised upon a violation of Article 1, Sec. 5 of the NYS Constitution (see Martinez v City of Schenectady, 97 NY2d 78 [2001]; Boggs v State of New York, 51 Misc 3d 376 [Ct Cl, 2015]).
In the instant matter, Mr. Sabo explained that inmates brought to Albany Medical Center pose escape risks requiring heightened security. While the degree of restraint imposed upon the claimant seems harsh given the prolonged period of time he remained in the Albany Medical Center holding pen, wearing full restraints, the Court cannot second guess prison officials who are charged with the responsibility of maintaining the safety and security of inmates, staff and, in this case, the public as well (see generally, Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428 [2011], rearg denied 18 NY3d 898 [2012], cert denied 568 US 817 [2012]). Claimant offered no evidence that the prolonged use of restraints resulted in injury (cf. Davidson, supra; Matter of Ross v Goord, 262 AD2d 883, 885 [3d Dept 1999], appeal dismissed 93 NY2d 1039 [1999]) or that he was deprived of the "minimal civilized measure of life's necessities" during the time these restraints were applied (Matter of Malik v Coughlin, 157 AD2d 961, 962 [1990]; cf. Hope v Pelzer, supra [claimant was handcuffed to a hitching post for seven hours in the heat of the sun, without sufficient water or bathroom breaks, thereby subjecting him to particular discomfort and humiliation]). Accordingly, the Court finds claimant failed to establish by a preponderance of the credible evidence that he was subjected to cruel and unusual punishment.
To the extent claimant alleges in claim number 123480 that he was provided with a crutch rather than a wheelchair after surgery for the removal of a bunion, the evidence adduced at trial reflects this decision was made by personnel at Albany Medical Center, not by DOCCS personnel. Absent proof of an ostensible agency, the State bears no liability for the conduct of an independent contractor (Garofolo v State of New York, 135 AD3d 1108 [3d Dept 2016]). In any event, claimant failed to support his claim with medical evidence demonstrating a deviation from the applicable standard of care or that DOCCS' conduct was a proximate cause of his injuries. Consequently, claim numbers 123479 and 123480 must be dismissed.
Let judgments be entered accordingly.
August 14, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims