Opinion
# 2021-032-036 Claim No. 124563 Motion No. M-95788 Cross-Motion No. CM-96018
04-13-2021
EON SHEPHERD v. STATE OF NEW YORK
Eon Shepherd, Pro Se Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG
Synopsis
Claimant's motion for summary judgment denied; defendant's cross-motion for partial summary judgment granted.
Case information
| UID: | 2021-032-036 |
| Claimant(s): | EON SHEPHERD |
| Claimant short name: | SHEPHERD |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124563 |
| Motion number(s): | M-95788 |
| Cross-motion number(s): | CM-96018 |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Eon Shepherd, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 13, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed the instant claim on June 23, 2014 asserting causes of action sounding in negligent bailment, medical negligence, and deprivation of religious freedom arising from defendant's alleged failure to grant claimant's request for a religious meal. Issue was joined on July 31, 2014. Claimant now moves for summary judgment. Defendant opposes the motion and cross-moves for summary judgment on claimant's cause of action alleging deprivation of religious freedom.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function on a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247, 254 [1980]). The proponent of a motion for summary judgment must establish a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (id.; Winegrad New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept. 1983]). A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (CPLR 3212 [b]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
Deprivation of Religious Freedom
Claimant alleges that he is a "ratafarian" who does not eat meat (Verified Claim ¶ 29) and that Upstate Correctional Facility (Upstate C.F.) denied his request to be served a religious meal (id.).
Freedom of religion is protected by the First Amendment of the United States Federal Constitution, and Article 1, section 3, of the New York Constitution. It has been guaranteed to inmates pursuant to Correction Law § 610.
Correction Law § 610 (3) provides, in relevant part, that "[i]n case of a violation of any of the provisions of this section any person feeling himself aggrieved thereby may institute proceedings in the supreme court of the district where such institution is situated." Accordingly, to the extent claimant may be asserting a cause of action for violation of Correction Law § 610 (1), the Court of Claims has no jurisdiction and such a cause of action must be dismissed (Alsaifullah v State of New York, UID No. 2017-040-028 [Ct Cl, McCarthy, J., Mar. 1, 2017]; Zaire v State of New York, UID No. 2015-015-050 [Ct Cl, Collins, J., Apr. 22, 2015]).
Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.
To the extent claimant is alleging a cause of action based upon a violation of the Federal Constitution, it must also be dismissed. It is well settled that the State is not a "person" amenable to suit under 42 USC § 1983 (Brown v State of New York, 89 NY2d 172, 184-185 [1996]).
Finally, to the extent claimant is alleging a cause of action based upon a violation of the New York State Constitution, it also must be dismissed. A cause of action alleging a violation of the State Constitution may give rise to a tort cause of action in the Court of Claims only where it is necessary to ensure the full realization of the claimant's constitutional rights (Brown v State of New York, 89 NY2d 172 [1996]; Martinez v City of Schenectady, 97 NY2d 78 [2001]). In the present case, claimant had alternative avenues of redress available, including an action or proceeding in the Supreme Court pursuant to Correction Law § 610.
Accordingly, defendant's cross motion to dismiss claimant's cause of action for deprivation of religious freedom is granted.
Medical Negligence/Medical Malpractice
Claimant alleges that he suffers from a urological condition that requires medication. On October 5, 2013, claimant was informed that his medication was being switched from nasal form to a pill form, but he did not receive the new medication until December 21, 2013.
Claimant further alleges that he held a permit to wear tinted eyeglasses and a knee brace at Shawangunk Correctional Facility (Shawangunk C.F.). The permits expired on March 4, 2014 and were not reissued until April 14, 2014. As a result, claimant alleges that he suffered from pain and discomfort in his knee from March 4, 2014 through April 14, 2014. He also alleges that without the use of tinted eyeglasses during that period, he suffered from migraines, blurry vision, light sensitivity and an inability to read or write.
Defendant argues that claimant's motion for summary judgment as to these causes of action must be dismissed because claimant failed to submit an expert affidavit, which is required to be granted summary judgment in a medical malpractice action (see Wood v State of New York, 45 AD3d 1198 [3d Dept. 2007]). However, claimant characterizes these causes of action as claims for negligence, not medical malpractice.
"[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and 'no rigid analytical line separates the two' " (Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996], quoting Scott v Uljanov, 74 NY2d 673, 674 [1989]). "The issue devolves to whether medical judgment is required or not; where the underlying claim arises from the failure to follow a medical order previously made or to apply standards of ordinary care, then it is negligence, without regard to whether expert testimony is deemed helpful to the resolution. However, where the conduct involves a standard established by means of the exercise of medical judgment, then it is malpractice" (Martuscello v Jensen, 134 AD3d 4, 11 [3d Dept. 2015]; see Weiner v Lenox Hill Hosp., 88 NY2d at 788; Moore v St. James Health Care Ctr., LLC, 141 AD3d 701, 702 [2d Dept. 2016]). If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State's employees can be readily determined by a fact-finder using common knowledge without the necessity of expert testimony (Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 [1st Dept. 1986]).
Here, claimant alleges that defendant failed to adhere to three medical directives: (1) a prescription for a urological medication; (2) a permit allowing claimant to wear tinted eyeglasses; and (3) a permit allowing claimant to wear a knee brace. Where a claim alleges that a medical directive was made but not followed, the cause of action based on the failure to follow such directive sounds in ordinary negligence (see Mossman v Albany Med. Ctr. Hosp., 34 AD2d 263, 264-265 [3d Dept. 1970]). Thus, to establish a prima facie case of negligence, the claimant must demonstrate, by a preponderance of the evidence: (1) defendant owed claimant a duty of care; (2) defendant breached that duty of care; and (3) defendant's breach substantially caused the events that led to the claimant's injuries (Keating v Town of Burke, 86 AD3d 660 [3d Dept. 2011]; Solomon v City of New York, 66 NY2d 1026, 1027 [1985]).
The medical records submitted with claimant's summary judgment motion indicate that the permits for his tinted eyeglasses and knee brace were issued on March 18, 2014. Then, on April 4, 2014, claimant reported to medical staff that "security" at the correctional facility informed him that both permits were invalid (Claimant's Exhibit E2). He was provided with valid permits on April 14, 2014. Claimant states that the permits were deemed invalid because they did not contain the Captain's signature. Indeed, the copies of claimant's medical permits submitted with the claim plainly state that the permits require a Captain's signature if the medical device contains metal parts.
In the context of correctional facilities, "security issues may subsume medical ones" (Sumpter v State of New York, UID No. 2008-030-024 [Ct Cl, Scuccimarra, J., Oct. 3, 2008]). Because the permits may have been rendered invalid pursuant to established security protocols and procedures, there is a question of fact as to whether defendant breached a duty owed to claimant. Defendant would be entitled to qualified immunity if defendant's employees used reasoned judgment in denying claimant the use of the permits (see generally Arteaga v State of New York, 72 NY2d 212 [1988]), and therefore could not be held liable for negligence in rendering that judgment.
As to claimant's prescription for his urological condition, claimant has not established that he possessed a valid prescription for the medication or that defendant failed to provide the medication (Livingston v State of New York, UID No. 2014-044-009 [Ct Cl, Schaewe, J., Oct. 14, 2014]). Therefore, a question of fact remains as to whether medical personnel rendered a valid medical directive and whether defendant's employees delayed complying with said medical directive. Contrary to claimant's contentions, the record here contains no evidence to establish that claimant possessed a prescription that defendant failed to fill.
Accordingly, claimant's summary judgment motion as to these causes of action is denied.
Bailment
A bailment is created once claimant demonstrates that his property has been delivered to defendant, and that defendant has failed to return it to claimant in the same condition (Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept. 1977]; Christian v State of New York, 21 Misc 3d 1128[A], 2008 NY Slip Op 52267[U] [Ct Cl 2008]). If claimant meets this burden, there is a presumption of liability, and the burden then shifts to defendant to come forward with evidence to overcome the presumption by establishing a non-negligent explanation for the loss of claimant's property (Maisel v Gruner & Jahr USA, 89 AD2d 503 [1st Dept. 1982]).
Pursuant to Court of Claims Act § 10 (9), a claim by an inmate for recovery of damages for destruction to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the correctional department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy. Failure to comply with the exhaustion requirement deprives the Court of Claims of subject matter jurisdiction (Williams v State of New York, 38 AD3d 646 [2d Dept. 2007]). Here, claimant has failed to show that he exhausted administrative remedies prior to filing the instant claim. Accordingly, claimant's motion for summary judgment as to the cause of action for bailment is denied.
Based upon the foregoing, claimant's motion for summary judgment (M-95788) is DENIED. Defendant's cross motion for partial summary judgment (CM-96018) is GRANTED to the extent that the cause of action for deprivation of religious freedom is dismissed.
April 13, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion for Summary Judgment, dated February 12, 2020; and Affidavit in Support of Claimant's Motion for Summary Judgment, sworn to by claimant on February 12, 2020, with Attachments. 2. Notice of Cross-Motion for Summary Judgment, dated October 7, 2020; and Affirmation in Support, affirmed by Ray A. Kyles, AAG on October 7, 2020, with Exhibits. 3. Affirmation in Opposition to Defendant's Cross-Motion for Partial Summary Judgment, signed by claimant on November 2, 2020.