Opinion
# 2016-029-076 Claim No. 125252
10-04-2016
EON SHEPHERD v. THE STATE OF NEW YORK
EON SHEPHERD, PRO SE ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Christina Calabrese, Assistant Attorney General
Synopsis
After a video trial, defendant found liable to claimant for negligence in failing to provide him with prescribed medical boots, and assigning him to a non-flat facility contrary to defendant's earlier grant of request for reasonable accommodation. Claimant awarded $250 for pain and suffering. Defendant found not liable for medical negligence arising from failure to treat or provide tinted sunglasses, where no supporting medical expert opinion testimony was presented. Defendant also found not liable for negligence in failing to reasonably accommodate claimant's shy bladder, where there was no proof of actual injury.
Case information
| UID: | 2016-029-076 |
| Claimant(s): | EON SHEPHERD |
| Claimant short name: | SHEPHERD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125252 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | EON SHEPHERD, PRO SE |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Christina Calabrese, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 4, 2016 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed a pro se verified claim on November 13, 2014 alleging negligence by the State of New York arising from: failure to provide claimant with the medical boots it had prescribed; failure to issue a permit allowing claimant to put up a sheet that would block inmates and staff outside his cell from watching him use the toilet; failure to provide claimant with treatment for back pain and right knee pain and swelling; taking from claimant the tinted glasses it had prescribed then failing to return them; and housing claimant in a non-flat facility even though his request to be housed in a flat one as a reasonable accommodation due to multiple physical problems had been approved.
A video trial was held on August 25, 2016. Claimant represented himself and testified on his own behalf. He was the only witness to appear at trial. Claimant also introduced the only exhibit, a copy of his "medical records" (also containing additional inmate records) admitted collectively as Exhibit 1.
Claimant was prescribed medical boots because he has a medical condition called "hammer toes." Around October 2013, he was given boots that were too tight, causing him pain and discomfort, but he was told they would loosen up. He again complained of pain and reported the boots were still too tight. Medical tried to fit him with special issue boots but did not accommodate his condition and walking difficulty. Around August 2014, after claimant's transfer to Clinton Correctional Facility, one of the doctors said he had been issued the wrong size boots. New boots were ordered but they were still the wrong boots as they were still causing claimant pain. Claimant was not provided with the right boots until July 9, 2015, after his transfer to Five Points Correctional Facility.
Claimant was prescribed tinted glasses because he suffers from Glaucoma. In September 2014, when he was transferred to Downstate Correctional Facility for a court appearance, the tinted glasses were taken from him. He was told that he needed to have a "permit" for the glasses. Claimant did not have his permit with him because he was not allowed to have it while being transferred. The glasses were not returned to Clinton, and they were not replaced until February 2015.
Claimant suffers from "shy bladder," a condition in which he cannot urinate or defecate in front of other people. Defendant accommodated claimant when he had to provide a urine sample by allowing him to urinate in a separate room. When he was housed at Shawangunk beginning in 2012, claimant was housed in a cell with the toilet in the front at the entrance where inmates and staff outside the cell could observe him going to the bathroom. It was documented in his ambulatory records that he has "shy bladder" and was soiling himself. From July 2013, until around June 2014, he put up a sheet to partially block the view of him going to the bathroom. A correction officer then made him remove the sheet. He put in a grievance and was told to request a medical permit. Between June and August 2014 he submitted several requests for a permit to Dr. Lee, who denied them. Without the sheet or reasonable accommodation, claimant could not relieve himself in the toilet and he soiled himself at night.
Claimant suffers from back and knee pain making it difficult for him to use stairs. He was supposed to be housed in a "flat facility." In August 2014 he was sent to Clinton, which is not a "flat facility." He requested a transfer but was kept at Clinton until December 2014. Defendant knew he could not ambulate well and should not be at Clinton because he had been housed there twice before and was transferred out because he had fallen while using the stairs.
On cross-examination, claimant testified that he is disabled due to injured lumbar spine, resulting in mobility problems.
Documents admitted as part of claimant's Exhibit 1 show, inter alia, that: (i) When claimant was transferred to another facility, notes on September 25, 2008 specify "transfer considerations" due to "physical lim": "Screened and cleared for double cell; bottom bunk only per medical. Requires a 'flat' facility due to ambulatory problems"; (ii) In a June 5, 2009 memorandum, the Clinton Deputy Superintendent for Program Services stated,
"Your request for reasonable accommodations, transfer to a flat facility, is approved.
The Medical Department has informed me of the following; right knee instability chronic pain, Moderate degeneration of lumbar spine, nocturnal enuresis, ambulates with a cane and right ACL brace. The inmate is not able to ambulate long distances, stairs pose a threat to the patient's safety, stairs should be very limited or none at all, needs enuresis alarm for night.
You currently have the following assessed program needs; Vocational, Work, and ASAT. At this time I will be submitting a request to Central Office to consider you for transfer to a facility that will better meet your programming and medical concerns."[;]
(iii) In an October 31, 2012 response to a grievance by claimant, the IGRC states, "The grievant should not be double bunked and the necessary provisions should be made to place him in a single cell. Grievants [sic] is eligible for double-bunk cell per Directive 400"; (iv) Claimant complained in a grievance dated December 10, 2012, that his request for reasonable accommodation and placement in a single cell was denied; (v) As instructed, claimant submitted written requests to Dr. Lee for a permit allowing him to partially block the toilet in his cell at Shawangunk from others, but the requests were denied; (vi) Claimant complained that his eyes were "getting worse," his glaucoma was "being aggravated," he was experiencing "frequent pain and discomfort," and he had "chronic migraine headaches, double blurry vision and inability to see at times"; (vii) Claimant was prescribed medical boots, but he was given the wrong size boots, which hurt his feet, and he only received correct boots as of July 9, 2015.
The court found claimant to be a credible witness. Based on his testimony and on the admitted records (Exh. 1), the court makes the following findings of fact:
Claimant was prescribed medical boots for "hammer toes." In October 2013, he was provided a pair of medical boots that were too tight, causing him pain and discomfort. He was told he would get used to them. The boots remained too tight and claimant complained of pain and discomfort. He did not receive a pair of properly fitting medical boots as prescribed until July 9, 2015.
Claimant has Glaucoma and was prescribed tinted glasses. The glasses were taken from him in September 2014 because he was not carrying his permit for them, although prison rules precluded him from carrying the permit while being transferred to another facility. The glasses were not returned, and claimant was not provided with a replacement pair until February 2015. Loss of the glasses resulted in headaches, blurred vision and additional pain and discomfort. However, the effect of the non-use of these glasses would require expert medical testimony to establish proximate causation for claimant's claimed headaches or worsening condition. No such evidence is in this record.
Defendant knew that claimant had a condition resulting in his not being able to use the toilet in front of others, that without the needed privacy, claimant would soil himself at night, and that claimant did not have the needed privacy in his cell at Shawangunk. Defendant's medical staff unreasonably refused claimant's requests for a reasonable accommodation. Claimant proved that his treatment was likely humiliating, degrading and uncomfortable, but there was no evidence of physical injury or pain.
Defendant knew that claimant had back and knee problems making it dangerous and painful for him to use the stairs. On June 5, 2009, the Deputy Superintendent approved his request for a reasonable accommodation, transfer out of Clinton to a flat facility. Regardless, claimant was transferred back to Clinton in August 2014, and kept there until December 2014.
"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" including proper diagnosis and treatment (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). "Where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is . . . required to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant's injuries" (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007] [internal quotation marks omitted]).
Claimant has failed to establish a prima facie case of medical negligence based on defendant's alleged failure to provide treatment for his back pain, right knee pain and swelling. To prove his claim on this point, claimant needed medical opinion testimony to establish the type and extent of the alleged injuries, what treatment was required, and whether defendant's medical staff deviated from an accepted standard of care. Likewise, such testimony was needed in regard to the tinted sunglasses. Claimant did not call a medical professional as a witness to provide opinion testimony.
Nor did claimant present sufficient evidence of negligence based on defendant's failure to reasonably accommodate his inability to use the toilet without privacy. Negligence requires a reasonably foreseeable danger of injury to another, conduct that is unreasonable in proportion to that danger and proof of actual injury (Sanchez v State of New York, 99 NY2d 247, 252 [2002]). The State is not an insurer of inmate safety (id.). Although claimant presented prima facie evidence of defendant's duty and unreasonable conduct in violation of that duty, he did not allege or prove at trial that he sustained any actual physical injury, or that his situation posed a reasonably foreseeable danger of injury.
However, claimant has established a prima facie case of negligence based on defendant's failure to provide him with the correct prescribed medical boots and assignment to Clinton, a non-flat facility, contrary to the Deputy Superintendent's grant of claimant's request for assignment to a flat facility as a reasonable accommodation for his disability (see Livingston v State of New York, UID No. 2014-044-009 [Ct Cl, Schaewe, J., Oct. 14, 2014] [State negligent where prison failed to fill prisoner's prescription for eyedrops for over a month]; see also France v State of New York, 132 Misc 2d 1031, 1032 [Ct Cl 1986] [State found liable for negligence where prison druggist failed to mix and dispense salve as prescribed]; cf. Kagan v State of New York, 221 AD2d 7, 10 [2d Dept 1996], abrogated on other grounds, McLean v City of New York, 12 NY3d 194, 203 [2009] [holding discretionary action, ministerial act without special duty, may not be a basis for liability]).
Defendant failed to present any evidence explaining its failures to treat claimant as prescribed and pursuant to the reasonable accommodations it had approved. Accordingly, defendant is found liable for negligence. Claimant is awarded $250 for his pain and suffering attributable to defendant's failure to provide medical boots and assignment to a non-flat facility contrary to defendant's prior approval of claimant's reasonable accommodation request for a transfer out of that same facility. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act section 11-a(2). The Clerk of the Court is directed to enter judgment accordingly.
October 4, 2016
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims