Opinion
Claim No. 128320
12-20-2021
Steven STRONG, Claimant, v. The STATE of New York, Defendant.
For Claimant: ANDREW F. PLASSE & ASSOCIATES, LLP, By: Andrew F. Plasse, Esq. For Defendant: LETITIA JAMES, Attorney General for the State of New York, By: Elizabeth A. Gavin, Assistant Attorney General
For Claimant: ANDREW F. PLASSE & ASSOCIATES, LLP, By: Andrew F. Plasse, Esq.
For Defendant: LETITIA JAMES, Attorney General for the State of New York, By: Elizabeth A. Gavin, Assistant Attorney General
Walter Rivera, J.
Decision
The trial of this claim on liability only was heard on May 20, May 21 and June 22, 2021 via video-conferencing technology. Claimant testified on his own behalf from Sing Sing Correctional Facility ("Sing Sing") where he is incarcerated. Claimant's Exhibits 1 through 4 were received into evidence on stipulation. Defendant presented the testimony of Harold Meyers and Superintendent Michael Capra. Defendant's Exhibits A through F and H were received into evidence. The executed virtual trial stipulation was received into evidence as Court's Exhibit 1.
Due to the retirement of Judge Stephen J. Mignano, the claim was transferred to Judge Walter Rivera by Order dated May 17, 2021.
Claimant's Case
Claimant testified on direct examination that on December 17, 2015, he was returning from "chow" at Green Haven Correctional Facility (Green Haven) and as soon as he walked onto the gallery, another incarcerated individual assaulted him and cut his face (T 5/20: 11). Claimant was injured and rendered unconscious (T 5/20: 11-12). After the incident claimant learned that his attacker's name was C.W. Claimant had been incarcerated at Green Haven for approximately two and one half years and had not previously seen C.W. (T 5/20: 9-10).
"T [date]: [#]" refers to the relevant month and day in 2021 of the trial and the relevant page(s) of the trial transcript.
"C.W." refers to claimant's alleged assailant, whose name is being withheld to protect his privacy.
Claimant testified on cross-examination that prior to the incident he did not interact with C.W. and he had no reason to fear that C.W. would attack him (T 5/20: 13). Claimant denied being a gang member in 2015, but admitted a prior gang affiliation in a "block situation" (T 5/20: 14-15). On June 15, 2015, he received a misbehavior report for possessing gang materials and he pleaded guilty. He explained that he was in possession of the materials because he was writing a book about gangs (T: 5/20: 14-17). On redirect examination, claimant testified that he had completed four books about life in prison. Some of the subject matter material involved gangs, including a fictitious Bloods gang sect he called Gotham City Brim (T 5/20: 17-20).
Claimant's attorney read excerpts of certain exhibits into the record, summarized as follows.
Exhibit 1 is a certified redacted copy of C.W.’s psychiatric progress notes from Five Points Correctional Facility (Five Points) and Green Haven, and DOCCS (Department of Corrections and Community Supervision) transfer progress notes. A screening note from C.W.’s admission to the Office of Mental Health (OMH) Satellite Unit at Five Points on August 12, 2015 (Ex. 1, p 8) provides that C.W. was referred for verbally abusing a correction officer, that he was "angry and emotionally reactive," he did not want medication, and he claimed to have asked for and received PC [protective custody] status because his gang issued a $5,000 contract for anyone to cut him after he had reported to security that his gang assigned him to carry out a hit on another incarcerated person that he did not complete. Notes from a private OMH interview at Five Points on September 11, 2015 (id. at 9) provide that the interview was requested by security, and that C.W. said he had been diagnosed with "Borderline Personality Disorder," he was feeling angry, having verbal altercations with officers, and feeling like they were "out to get him." It was also noted that C.W. had been expressing threats to officers and "had a recent admission to RCTP [Residential Crisis Treatment Program] for threats" (id. at 10).
Exhibit 2 is a certified copy of a disciplinary hearing against C.W. for an incident at Great Meadow Correctional Facility (Great Meadow) on November 12, 2014. C.W. was charged with and found guilty of fighting and violent conduct arising from a yard fight.
Exhibit 3 is a copy of a hearing disposition for disciplinary charges against C.W. for violent conduct and fighting arising from another fight at Great Meadow on December 31, 2014. Staff from OMH testified at the hearing, after which C.W. was found guilty (T 5/20: 24-26).
Exhibit 4 is a certified copy of the disciplinary proceedings against C.W. for the attack on claimant. Beginning on page 4 of the hearing transcript, counsel read the following description of the incident, as reported by Correction Officer K. Whicom: "while observing 1-Company chow return with approximately 16 [incarcerated persons], when this [incarcerated person C.W.], 14A3894 H1-11, struck [incarcerated person] Strong, 08A0283, who is in H1-26, with a closed -- with a close -- first [sic] punch to [incarcerated person] Strong's face, causing him to fall on the floor" (T 5/20: 22-23). Counsel also read C.W.’s guilty plea to the charges arising from the incident in which he said he had not been in his "right state of mind" (Ex. 4, p 5).
Clinical notes from C.W.’s admission to the Green Haven RCTP on December 9, 2015 (Ex. 1, p 11) report that C.W. said he was trying to get out of his gang, the Bloods, and gang members were trying to hurt him. It was also noted that "security has reported patient is not getting PC, at this time, as he was unable to provide any information regarding people who are threatening him" (id. at 13). It was noted on December 10, 2015 (id. at 2-3) that C.W. reported he had been in PC in "multiple prisons," he was in a gang called "Gorilla Stone," and he was afraid they would kill him. It was noted on December 12, 2015 (id. at 4) that C.W. reported "he was released today from 30 days KL [keeplock] for tier II ticket for fighting." It was noted on December 16, 2015 (id. at 3) that C.W. said he did not want PC or TRI-CP (Transitional Intermediate Care Program), but he did want ICP (Intermediate Care Program). He was "tired of being called ‘bug out’ by dudes on the block" (id. ).
After claimant rested his case, the State moved to dismiss the claim, arguing that claimant failed to establish a prima facie case of negligence. Claimant opposed the motion. The Court reserved decision on the motion.
Defendant's Case
The State offered Harold Meyers, a Forensic Program Administrator 2 with OMH, as an expert in the area of mental health in correctional facilities. Claimant's counsel consented. Mr. Meyers has been employed by OMH for 23 years and has been in his current position for two years. In that position, he oversees the mental health programs at 15 correctional facilities, including Green Haven (T 5/21: 3-4). He explained that he was trained and licensed as a social worker and served as a Unit Chief before his current position. As a Unit Chief, he had contact with patients daily and he was involved in their care and treatment (T 5/21: 36-38).
Mr. Meyers explained that a "satellite unit" is "the Office of Mental Health's mental health services within a DOCCS correctional setting" (T 5/21: 7). Generally, OMH cannot show DOCCS a patient's clinical treatment records due to patient confidentiality. However, OMH notifies a DOCCS Sergeant of security issues concerning a patient, such as C.W.’s claim that he would be attacked in General Population (GP). OMH can also share information about threats to the safety and operation of the facility, such as gang affiliation. Security speaks with the patient about security issues (T 5/21: 8, 13-14).
Mr. Meyers described the RCTP as a "small hospital" where people are sent "as a result of being a danger to self or others or psychiatric decompensation" (T 5/21: 7). The decision whether to admit an incarcerated person referred to the RCTP is made by an OMH staff member (T 5/21: 10). Patients in the RCTP have the right to refuse medication, unless an order is in place, and to be placed in the least restrictive setting in which they can function. Patients in the RCTP are monitored with cameras in the cells and security staff make rounds every 15 minutes. OMH staff review the logs kept by security staff before conducting daily out-of-cell private interviews with patients (T 5/21: 11-12). To be discharged from RCTP back to General Population, OMH clinicians must determine, based on their clinical judgment, that a patient's psychiatric symptoms are stable "and/or" the patient's thoughts are no longer a danger to himself or others (T 5/21: 28-30, 32).
Mr. Meyers was then asked questions about C.W.’s psychiatric records, which were heavily redacted. He determined that C.W. had been admitted to the RCTP based on security concerns, and he explained what C.W. was referring to when he said he did not want PC or TRI-CP. "TRI-CP" is an OMH treatment program for those with "serious mental illness" that is situated in GP (T 5/21: 25, 31). C.W. said he wanted ICP, which is a prison-based mental health program that is segregated from GP (T 5/21: 25-26, 34). Mr. Meyers described ICP as "where people with serious traditional mental illness and functional impairment [... are] segregated from the rest of the prison" (T 5/21: 6). There is a DOCCS housing unit and security staff, "but pretty much every other aspect of the operation is directed by [OMH]" (T 5/21: 8).
During discovery, Judge Mignano conducted an in camera review of the records and issued a decision and order filed stamped December 1, 2017, directing production of certain records with specified redactions.
On cross-examination, Mr. Meyers was asked about certain notes in the records, which he testified indicated that C.W. was admitted to the Green Haven RCTP on December 9, 2015, and to the OMH satellite unit at Five Points on September 11, 2015. He denied knowing that C.W. had been involved in assaults between incarcerated individuals in November and December of 2014 (T 5/21: 46-47). On redirect examination, Mr. Meyers agreed that the fact C.W. was discharged to GP meant that the clinical OMH staff in the RCTP decided that the ICP was not necessary or appropriate for him (T 5/21: 47).
The State's attorney then sought to ask Mr. Meyers questions based on his review of an unredacted copy of C.W.’s records. Claimant's attorney objected, arguing that the State should be precluded from using unredacted records that claimant had not reviewed. The Court allowed continued fact-based questioning of Mr. Meyers based on previously produced redacted records, then adjourned the trial until it could decide whether to permit the State to continue examining Mr. Meyers after producing additional records to claimant (T 5/21: 48-54). In an Order filed June 16, 2021, the Court directed the State "to produce the portions of the mental hygiene records of C.W. which form the basis of Mr. Meyers’ opinions on the issue of whether C.W. posed a danger to others when he was released from the RCTP at Green Haven Correctional Facility on December 16, 2015." Those documents were admitted under seal as Exhibit H.
The issue regarding the production of additional records having been resolved, Mr. Meyers continued his testimony on June 22, 2021. He determined from the unredacted records that C.W. was admitted to the RCTP on December 9, 2015 for engaging in self-injurious behavior and for expressing suicidal ideation. A clinical decision was then made that C.W. could be discharged to GP on December 16, 2015 (T 6/22: 3-5). On cross-examination, Mr. Meyers testified that at the time of the incident at issue he had only been to Green Haven to conduct training. In his opinion, when C.W. was discharged from the RCTP he was not a danger to himself or to others. He did not review any parts of C.W.’s disciplinary history before forming his opinion. His opinion, and the opinion of the clinician who discharged C.W., were based on records of the episode of C.W.’s care in the RCTP from December 9-16, 2015, and not on C.W.’s past violent conduct (T 6/22: 6-13, 17-18). He assumed that the "Green Haven team" considered C.W.’s disciplinary history and would have reviewed C.W.’s clinical record "and determined how relevant aspects of his history would be to his episode of care" (T 6/22: 29).
Mr. Meyers testified about a statement C.W. made during an interview with a clinician in the RCTP on December 16, 2015. C.W. stated: "I don't want PC. I don't [want] TRI-CP. I want straight up ICP. I am tired of being in GP and them calling me crazy. I want to be around people who are like me and what I am willing to do [...] to get this is I will just cut myself until you give me what I want" (T 6/22: 19). Meyers testified that if C.W. were discharged on the same day he made this statement, "it would've been an inappropriate discharge" (T 6/22: 19-20). He qualified this conclusion by testifying that "since he was discharged, by definition, they [OMH clinicians] did not believe that he was a danger to himself at that time" (T 6/22: 20). The clinician's notes on December 16, 2015 also provide, in relevant part:
"[p]atient may engage in or threaten superficial self-harm as a means of avoiding continued placement in SHU but this is not a product of mental illness nor a genuine attempt at ending his life. He has expressed this to be goal-directed at getting ICP placement for which he does not meet the criteria. Patient has not engaged in any self-injury since admission. He has presented without any affective instability. He is attempting to obtain ICP. Patient is being discharged and will return to GP where he will continue follow up with OMH"
(T 6/22: 20; Ex. H, pp 12-13).
C.W. was discharged to GP that same day (Ex. 1, p 14). Mr. Meyers stated that C.W. did not meet the criteria for ICP, which is a program for those with a functional impairment from a serious mental illness (T 6/22: 38-39). He also concluded that a clinical determination was made that C.W. was not a danger to himself or to others when he was discharged from the RCTP, he had a mental health diagnosis, and he should continue to receive mental health services and receive medication (T 6/22: 41-44).
The unredacted Green Haven RCTP admission form shows that C.W. was suffering from suicidal ideation and had a history of suicide attempts and self-mutilation (Ex. H, p 3). The unredacted progress notes for December 10, 2015 (id. at 4) provide that C.W.’s primary diagnosis was "Adjustment Disorder with anxiety and depressed mood." The notes also provide, in relevant part:
"[p]t was brought to RCTP OBS for threats of self harm. He also inflicted a laceration of left chest with a can lid which was dry and not bleeding. Pt reports that he has not cut himself in 1.5 years. [...] He is fearful of being killed. ‘Since I'm going to be killed I might as well kill myself’. [...] He is a very large man and he has multiple scars on both arms. [...] Reports previous psych hx of two in-pt admits at Belleview. One suicide attempt swallowed peroxide, another attempt he cut his wrist. [...] Says he has been on in the past Ritalin as a child, also has taken Concerta, Abilify, Risperdal, Remeron, Trazadone, Zoloft"
(id. ).
The unredacted progress notes for December 11, 2015 (id. at 8) provide that C.W. was making conditional threats of suicide, stating "if I go back, I'll kill myself," and that he stated, "[i]f I make it out of here, they'll kill me out there." The unredacted progress notes for December 14, 2015 (id. at 10) provide, "[a]s he has a history of doing so, patient may engage in superficial gesture as a means of avoiding continued placement in [general population] but not a genuine attempt to end his life." The noted clinical assessment on December 16, 2015 (id. at 6) provides that C.W.’s "[s]elf harm gestures appear calculated moves on his part to get when [sic] he wants," and that he would be discharged.
The State's other witness was Superintendent (Supt.) Michael Capra. Supt. Capra has worked for DOCCS for 40 years and has served as the Superintendent of Sing Sing for nine years. He was accepted as an expert in the area of correctional security and safety (T 5/21: 57-58).
Supt. Capra testified to the following facts.
He is in charge of the safety and well-being of all incarcerated individuals and staff at the facility. They have a zero-tolerance policy for gangs, but they do not track gang affiliation or people separately based on it. Incarcerated individuals are disciplined for displaying gang membership and contraband, and they are separated only when there has been a severe, egregious incident between them and there is final approval from the central office after a process involving security and counseling. There is a "separatee list" identifying the people to be kept separate from an incarcerated individual. C.W. was not on the April 17, 2017 separatee list for Steven Strong (T 5/21: 58-61; Ex. B). After reviewing C.W.’s disciplinary record, Supt. Capra concluded that C.W. was not an especially dangerous incarcerated individual who was likely to commit a violent assault and require administrative segregation. Generally, the disciplinary process is what is used to deal with violent conduct and fighting (T 5/21: 62-64).
According to Supt. Capra, nineteen to twenty percent of incarcerated male individuals have OMH files and are admitted to the RCTP because they have an acute propensity for self-harm. There is a "constant dialogue between Security and OMH" (T 5/21: 65, 67). C.W.’s designation as a Level 3 by OMH did not indicate he was especially dangerous (T 5/21: 68). As the Superintendent of a correctional facility, he makes a discretionary determination, based on the facts learned through an investigation, whether to put someone in protective custody. There needs to be "corroboration or other factors" (T 5/21: 66, 76, 81).
The State rested its case. The State moved to dismiss the claim for failure to establish a prima facie case of negligence by failing to demonstrate, by a preponderance of the credible evidence, that C.W.’s unprovoked attack was foreseeable. Claimant opposed the motion. The Court reserved decision on the motion.
Analysis
It is well settled that the State is required to use reasonable care to protect the incarcerated individuals in its correctional facilities from foreseeable risks of harm, including the risk of attack by other incarcerated individuals (see Sanchez v State of New York , 99 NY2d 247, 256 [2002] ; see Littlejohn v State of New York , 218 AD2d 833, 834 [3d Dept 1995] ). As in any other negligence action, "the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived" ( Sanchez , 99 NY2d at 252 ; see Basso v Miller , 40 NY2d 233, 241 [1976] ). Even though the "precise manner in which the harm occurred" may not have been foreseeable, liability attaches if it was "within the class of reasonably foreseeable hazards" to which the duty applies ( Sanchez , 99 NY2d at 252 ; see Rodriguez v City of New York , 38 AD3d 349, 352 [1st Dept 2007] ). Moreover, it applies to those risks that were foreseeable by actual or constructive notice (see Sanchez , 99 NY2d at 255 ). At the same time, the State's duty to incarcerated individuals "does not render the State an insurer of [their] safety" ( id. at 256 ; see Elnandes v State of New York , 11 AD3d 828, 829 [3d Dept 2004] ).
Claimant argues that C.W.’s unprovoked attack was foreseeable because the evidence shows C.W. was violent, he wanted to stay out of GP, and he would have used violence to get what he wanted. The evidence claimant relies on includes C.W.’s past discipline for fighting, and his threats to kill or injure himself if he was sent back to GP where, as he claimed, he would be killed.
The State argues that the evidence does not show C.W.’s unprovoked attack was foreseeable, but instead that the decision to discharge C.W. from the RCTP was based on OMH's professional judgment as to C.W.’s mental health, and that C.W. was an appropriate candidate for GP because he was not unreasonably dangerous. The State relies on C.W.’s records and the testimony, both factual and expert, of Mr. Meyers and Supt. Capra.
To establish liability in a case arising from an assault by one incarcerated individual of another, a claimant must prove one of the following: (1) that the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) that the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) that the State had ample notice and opportunity to intervene but did not act (see Douglas v State of New York , UID No. 2007-028-012 [Ct Cl, Sise, P.J., May 17, 2007] [assault foreseeable where claimant was target of specific attacks and threats]; Sanchez , 99 NY2d at 252 ; Shearin v State of New York, UID No. 2007-028-011 [Ct Cl, Sise, P.J., May 8, 2007] [no negligence where PC denied after incarcerated individual said he had no known enemies]).
Claimant's argument is not based on the first or the third scenarios. In that regard, there is no evidence in the record supporting the proposition that Green Haven staff was put on notice that claimant was likely to be assaulted by C.W. or at any more risk of violence than other individuals incarcerated at the facility, and claimant does not allege otherwise (see Elnandes , 11 AD3d 828 [attack with metal object not foreseeable where assailant had no prior encounters with claimant and was not listed on claimant's enemies list]; Smart v State of New York , UID No. 2007-029-053 [Ct Cl, Mignano, J., Dec. 21, 2007], affd 65 AD3d 1218 [2d Dept 2009] [proof not sufficient to show claimant was at greater risk than others]). Indeed, claimant testified that prior to the incident he did not interact with C.W. and he had no reason to fear that C.W. would attack him (T 5/20: 13).
Rather, claimant's argument is based on the second scenario, that the State knew or should have known C.W. was prone to perpetrate an attack. Claimant contends that C.W.’s disciplinary history, threats and history of self-harm, OMH admissions, expressed fear of being killed in GP and denial of PC, shows it was foreseeable that he would attack someone in order to get out of GP. The evidence adduced at trial shows otherwise.
Claimant does not argue that the decision by Green Haven security not to put C.W. in PC was negligent.
C.W. threatened only to hurt himself. He did not, as claimant argues, tell OMH staff that "he was willing to do what it took" to stay out of GP (Claimant's Memorandum, p 10). In addition, the State's expert, Supt. Capra, reviewed C.W.’s disciplinary record and concluded that C.W. was not an especially dangerous incarcerated individual who was likely to commit a violent assault. As the trier of fact, the Court "is not bound by opinion testimony, even when uncontradicted" (Matter of City of New York (A. & W. Realty Corp.) , 1 NY2d 428, 432 [1956] ; see Matter of New York City Tr. Auth. (Superior Reed & Rattan Furniture Co.) , 160 AD2d 705, 705 [2d Dept 1990] ). Nevertheless, Supt. Capra's testimony is supported by evidence that the incidents prompting C.W.’s discipline were fights with other incarcerated individuals, as opposed to egregious, violent assaults. Notably, claimant did not have his own expert in the area of security at correctional facilities. Claimant's self-serving testimony, coupled with the excerpts of C.W.’s medical records and disciplinary history, without more, do not persuade the Court that it was foreseeable that C.W. would attack claimant or others.
That Supt. Capra is an employee of the defendant in this action goes to his credibility and not his competence to testify (see Caldwell v Cablevision Sys. Corp. , 86 AD3d 46, 55 [2d Dept 2011], affd 20 NY3d 365 [2013] ).
Moreover, prison authorities should be afforded deference in managing the safety of their facilities (see Matter of Blake v Selsky, 10 AD3d 774, 775 [3d Dept 2004] ). "[A] prison's internal security is peculiarly a matter normally left to the discretion of prison administrators" (id. ; see Matter of Smith v Goord, 250 AD2d 946, 946-947 [3d Dept 1998], lv denied 92 NY2d 810 [1998] [internal citations omitted]).
Furthermore, the State argues that the discharge decision was a matter of professional judgment that is not actionable. It is well established that when a psychiatric patient's release (or discharge) is a matter of professional judgment, even if erroneous, "doctors or a governmental subdivision of the State that employs them cannot be held responsible for damages resulting from the [patient's] actions" ( Stephen v City of New York , 137 AD3d 1003, 1004 [2d Dept 2016] ; see Schrempf v State of New York, 66 NY2d 289, 296-297 [1985] ; Gallagher v Cayuga Med. Ctr. , 151 AD3d 1349, 1351 [3d Dept 2017] ). For liability to ensue, "it must be shown that the treatment decisions represented something less than a professional medical determination ... or that the psychiatrist's decisions were not the product of a careful evaluation" ( Ballek v Aldana-Bernier, 100 AD3d 811, 813 [2d Dept 2012] [internal citations omitted]; see Gallagher , 151 AD3d at 1351 ).
The Court finds that claimant did not meet his burden to show the State had notice that C.W. was prone to perpetrate an attack. Claimant did not call a medical or mental health expert or a witness knowledgeable about the treatment of mental health in correctional facilities. To the contrary, Mr. Meyers testified that the decision by OMH clinicians to discharge C.W. was based on certain criteria, such as the determination that C.W. was not a danger to himself or to others. He also explained that only those with a functional impairment from a serious mental illness are put in ICP, and that C.W. did not meet the criteria for ICP. To this extent, his testimony as to the process employed by OMH was fact-based and supports the finding that the OMH clinicians made a professional medical determination (see Ballek , 100 AD3d at 813 ).
Mr. Meyers’ additional opinion testimony as a clinical expert in the area of mental health in correctional facilities will not be considered by the Court. The State did not establish he was qualified to opine in an area that requires clinical training and professional assessment of an individual patient's mental health. In fact, there was no evidence that Mr. Meyers made an independent clinical assessment of C.W.’s mental health.
Upon consideration of all the evidence presented at trial, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant failed to establish by a preponderance of the credible evidence that the State was negligent.
Accordingly, the State's motion to dismiss made at the close of claimant's case is DENIED. The State's motion to dismiss, made at the conclusion of the trial, is now GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 128320.