New York State Court of Claims

New York State Court of Claims
CALLENDER v. THE STATE OF NEW YORK, # 2018-044-004, Claim No. 124672


Inmate claimant's claim for wrongful confinement, assault by COs and inadequate medical care dismissed after trial.

Case information

UID: 2018-044-004
Claimant short name: CALLENDER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124672
Motion number(s):
Cross-motion number(s):
Claimant's attorney: AARON CALLENDER, pro se
BY: Aaron J. Marcus, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 9, 2018
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim to recover damages for his allegedly wrongful confinement in a Special Housing Unit (SHU) as a result of a disciplinary hearing held while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira). Claimant also alleged that two correction officers (COs) slammed his hands in the feed-up hatch and beat him with a baton on October 31, 2013, and that he was not given appropriate medical care for his injuries. He further stated that he was denied his religious kosher meals. A trial in this matter was conducted by video conference on March 28, 2018, with the parties appearing at Elmira, and the Court sitting in Binghamton, New York.

At trial, claimant testified that he was attacked in the mess hall shortly after he was transferred to Elmira. After seeing a nurse and reporting that he had incurred no injuries in the altercation, he was given a misbehavior report and sent to SHU for fighting. He said that he asked to review his personal property, which resulted in a dispute with a CO who allegedly had taken a piece of personal jewelry. He said that he was reaching through the hatch on his cell door and the COs slammed the hatch on his hands. His personal jewelry was eventually returned to him.

Claimant said he was "placed on a deprivation order"(1) while in SHU. A copy of the deprivation order(2) indicates that he was being deprived of recreation and showers. It is unclear how long this order was in effect. Notably, the order contained no reference to any meal or food deprivation.

On cross-examination claimant said he was drafted into Elmira on October 15, 2013, and the dispute occurred on October 18, 2013. He said he was ticketed for fighting, found guilty after an administrative hearing, and sent to SHU. He testified that he filed a grievance and the disciplinary determination was reversed. He acknowledged that his internal movement history(3) indicated that he was removed from SHU on November 25, 2013 and sent to general population housing.

He said the reason he had his hands in the slot during his discussion with the CO about his jewelry was because the COs prefer that the inmates' hands be visible when they interact with the guards. He said that the slot was closed abruptly and one of the COs beat his hands with a baton. He testified that he did not refuse to remove his hands from the slot or try to prevent the hatch from being closed.

Claimant acknowledged that X rays were taken of his hands approximately a month after the incident. He admitted that the certified X ray report, dated November 29, 2013, stated that the scan showed "[n]ormal alignment and position without any signs of any significant arthritic changes or acute abnormalities."(4) On February 25, 2014, claimant underwent an electromyography (EMG) study, which stated that claimant was being evaluated for "left hand pain, weakness with numbness on the back of his left hand . . . . follow[ing] trauma on October 31, 2013."(5) The conclusion was that claimant suffered from "mild left carpal tunnel syndrome."(6) Claimant rested his case at the close of his testimony.

CO Perfetti, a DOCCS employee for 23 years, testified on defendant's behalf. He said that he was involved in the incident where claimant's hands were in the "feedup" hatch on October 31, 2013. Perfetti said that claimant had his hand out of the hatch, and was ordered to remove it so the hatch could be closed. Instead of removing his hand, claimant stuck a "slipper" into the hatch opening to prevent it from closing. Perfetti said that CO Woodworth, who was also present, used his baton to push the slipper back into the cell so that the hatch could close. Perfetti testified that Woodworth did not strike claimant's hands with the baton, and that claimant's hands were not slammed by the hatch door. Perfetti said that there was no indication that claimant had been injured in the incident, nor did he request medical attention.

On cross-examination, Perfetti said he did not remember whether a misbehavior report was issued to claimant regarding the incident. He said he did not know how the hatch had been opened, but noted that often inmates are able to open the hatches from inside their cell. He said he wrote a to-from memorandum regarding the incident.(7) On redirect, Perfetti stated that he had discretion regarding whether or not to charge claimant for an infraction of the rules regarding the incident.

CO Woodworth also testified on defendant's behalf. He said that on October 31, 2013, the hatch to claimant's cell was open, and claimant had his hand in it. He said that he and Perfetti pushed claimant's hand back into the cell, but claimant stuck his shoe in the hatch to prevent it from closing. Woodworth stated that he again used his baton to remove the shoe from the hatch door. He said there was no contact between his baton and claimant's hand, and claimant's hand was not closed in the hatch door. He also said there was no indication at the time that claimant had been injured, and claimant did not request medical attention.

Defendant rested its case at the close of Woodworth's testimony. Counsel for defendant moved to dismiss the claim, arguing that there was no evidence (other than claimant's testimony) that claimant's hand was injured in the hatch door on October 31, 2013. Counsel further noted that there was no expert medical testimony which might have established a causal relationship between any injury to claimant's hand on October 31, 2013 and the subsequent diagnosis in February 2014 of mild carpal tunnel syndrome. Counsel also represented to the Court that there was no indication, other than claimant's testimony, that the disciplinary determination regarding the altercation in the mess hall was ever reversed, or that claimant was even found guilty. Counsel further contended that claimant did not establish that he was wrongfully confined, in that there was no indication regarding the basis for the reversal of the disciplinary determination.(8) The Court reserved decision.

In order to establish a prima facie case of wrongful confinement - a "species" of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]) - a claimant must show that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). In this instance, there does not appear to be any dispute that defendant both intended to and did confine claimant without his consent in SHU on October 18, 2013. Therefore, the only remaining issue is whether that confinement was privileged.

It is well-settled that where DOCCS employees, in commencing and conducting formal inmate disciplinary proceedings, "act under the authority of and in full compliance with the governing statutes and regulations . . . their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]; see also Varela v State of New York, 283 AD2d 841 [3d Dept 2001]). This immunity may be lost if defendant violates its own rules and regulations in conducting the hearing or otherwise acts outside the sphere of privileged actions and deprives the claimant of a due process safeguard (Arteaga, 72 NY2d at 220-221).(9) Ordinarily, the violation of a rule or regulation alone is not a sufficient basis for a monetary award. The violation must also have caused an actual injury or loss to the claimant (see e.g. Rivera v State of New York, UID No. 2006-028-008 [Ct Cl, Sise, P.J., Feb. 8, 2006]).

In the grievance allegedly filed by claimant with regard to the disciplinary hearing,(10) the bases for his appeal are: that one or more witnesses was not called by the hearing officer and there was no indication on the record regarding why they did not testify; that claimant was not provided with a legal assistant; that claimant was not provided with an attorney; that the hearing did not conclude until November 22, 2013 when claimant was released from SHU (claimant indicated that he did not see the hearing officer after November 14, 2013); that the hearing officer was not impartial; and that the hearing officer investigated the charges "off record."(11) Defendant's counsel stated that DOCCS had no records indicating why or even if the determination was reversed, because the charge had been expunged.(12) In any event, claimant put forward no proof that defendant actually violated any of its own rules or regulations. Further, even though the subject arose several times, he did not testify regarding which (if any) of the allegations of rule violations contained in his grievance might have been the cause for the reversal (if indeed there was a reversal, rather than simply the expiration of the time within which to conclude the hearing). Finally, there was no proof adduced which might have indicated that this unknown rule violation was the actual cause of claimant's injury - in other words, that the outcome of the hearing would have been different if the unknown rule had not been violated. Claimant having failed to establish a prima facie cause of action (i.e. that the confinement was not privileged), the cause of action for wrongful confinement is dismissed.

In order to establish a cause of action for battery, a claimant must establish that there was bodily contact, which was offensive, that is "wrongful under all the circumstances" (Zgraggen v Wilsey, 200 AD2d 818, 819 [3d Dept 1994]), and that the defendant intended to cause such contact (see Messina v Alan Matarasso, M.D., F.A.C.S., P.C., 284 AD2d 32, 35-36 [1st Dept 2001]). It is not necessary for the defendant to intend to cause injury (Zgraggen, 200 AD2d at 819). While the lack of consent is considered when determining whether the contact was offensive, it is not conclusive (see Goff v Clarke, 302 AD2d 725, 726 [3d Dept 2003]; Zgraggen, 200 AD2d at 819). If consent is obtained by fraud or duress it should not bar recovery. "Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]; see also Steinborn v Himmel, 9 AD3d 531, 532 [3d Dept 2004]).

To the extent that claimant is asserting a cause of action for use of excessive force, it is well-settled that correction officers may use physical force to maintain order and discipline in correctional facilities, but "only such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2 [b]; see e.g. Johnson v State of New York, UID No. 2005-037-507 [Ct Cl, Moriarty III, J., Sept. 26, 2005]). The limited circumstances in which an officer may employ the use of force are set forth in 7 NYCRR 251-1.2, which states in pertinent part:

[a]n employee shall not lay hands on or strike an inmate unless the employee reasonably believes that the physical force to be used is reasonably necessary: for self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape (7 NYCRR 251-1.2 [d]).

The mere fact that an altercation occurred (in which force was used and the claimant was injured) between a claimant and a correction officer is not sufficient in and of itself to establish liability (Patterson v State of New York, UID No. 2002-031-015 [Ct Cl, Minarik, J., Apr. 23, 2002]; Thomas v State of New York, UID No. 2001-013-517 [Ct Cl, Patti, J., Dec. 2001]). The "[c]laimant must also demonstrate that the force used was unreasonable in light of the circumstances surrounding the altercation" (Patterson, UID No. 2002-031-015 at 2). The credibility of the witnesses is often the dispositive factor in cases of alleged excessive force (see Davis v State of New York, 203 AD2d 234 [2d Dept 1994]). The Court must assess the witnesses' testimony and determine whether it was necessary for the correction officers to use force against claimant, and if so, whether the force used was excessive or unreasonable under the circumstances (see Wester v State of New York, 247 AD2d 468 [2d Dept 1998]). In this instance, having considered the evidence, and having listened to the witnesses testify and observing their demeanor as they did so, the Court finds the testimony of CO Perfetti and CO Woodworth persuasive that they were trying to enforce an order to claimant to remove his hands from the hatch and to remove the obstruction in order to close it. The injury claimant alleges to have incurred during this altercation was not diagnosed until several months afterward. Under the circumstances present, the Court finds that the bodily contact, if any, was not wrongful. Moreover, the Court finds that, to the extent that any force was used at all, such force was not excessive under the circumstances. Accordingly, any causes of action for battery and/or use of excessive force are dismissed.

Although claimant indicated in his claim that he did not receive satisfactory medical treatment, he submitted no testimony or other evidence to that effect. "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]). In a medical malpractice case, the claimant has the burden of proving that the medical provider "deviated from accepted medical practice and that the alleged deviation proximately caused his injuries" (Parker v State of New York, 242 AD2d 785, 786 [3d Dept 1997]; see Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]). In other words, "[a] claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field" (Cabness v State of New York, UID No. 2010-030-043 [Ct Cl, Scuccimarra, J., Dec. 6, 2010] at 10). At trial, claimant provided no factual allegations pertaining to his treatment at all. Additionally, no causal relationship between the incident and the "mild carpal tunnel syndrome" was established by means of the requisite medical testimony. Accordingly, any cause of action for medical malpractice or medical negligence is dismissed.

Lastly, claimant stated in his claim that he was denied his religious kosher meals while in SHU, or in essence that his right to religious freedom was violated. However, he did not even raise the issue during his testimony. The right of religious freedom has been preserved in both the Federal Constitution (US Const, 1st Amend) and the State Constitution (NY Const, Art I,  3), and has been extended to inmates pursuant to Correction Law 610 (1). Correction Law  610 (3) provides in pertinent 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." To the extent that claimant is asserting a cause of action for violation of Correction Law 610 (1), the Court of Claims has no jurisdiction, nor (in light of the complete lack of evidence) has claimant established any violation thereof.(13)

Further, to the extent that claimant may be asserting a cause of action for violation of the Federal Constitution, the Court of Claims has no jurisdiction to consider Federal Constitutional claims, including civil rights violations brought under 42 USC 1983 (see e.g. Brown v State of New York, 89 NY2d 172, 184-185 [1996]). Moreover, because claimant has an adequate remedy in the form of an action or proceeding in Supreme Court pursuant to Correction Law 610 (1), this Court need not recognize a tort cause of action under the State Constitution (see Martinez v City of Schenectady, 97 NY2d 78 [2001]). Accordingly, claimant's cause of action for damages based upon the denial of his kosher meals is dismissed.

Based upon the foregoing, defendant's motion to dismiss Claim No. 124672 is hereby granted. Any and all motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.

Let judgment be entered accordingly.

April 9, 2018

Binghamton, New York


Judge of the Court of Claims

1. All quotes herein are taken from the Court's notes of the proceeding, unless otherwise indicated.

2. Claimant's Exhibit 6.

3. Defendant's Exhibit A.

4. Defendant's Exhibit C.

5. Defendant's Exhibit D at 2-3.

6. Id. at 3.

7. Claimant objected to the admission of the memorandum, and counsel for defendant withdrew his request to have it introduced into evidence.

8. Counsel stated that he had requested any such documentation from DOCCS, but that none was found.

9. "Where an alleged regulatory violation implicates no constitutionally required due process safeguard, however, the State retains its absolute immunity from liability" (Bethune v State of New York, UID No. 2015-015-098 [Ct Cl, Collins, J., Dec. 7, 2015]).

10. The "grievance" (Claimant's Exhibit 7) consists of 4 handwritten pages on lined paper, rather than on the standard grievance form used by DOCCS. There is no grievance number or any indication that it was actually submitted for review.

11. Id. at 4.

12. In fact, counsel speculated that there was never a finding of guilt and that claimant was released from SHU after the expiration of the time within which the hearing was required to be conducted.

13. See Hernandez v State of New York (UID No. 2012-049-064 at 3 [Ct Cl, Weinstein, J., Dec. 10, 2012]), where the Court specifically noted that because the Legislature had not provided a damages remedy in Correction Law 610, "[t]o find damages available under . . . circumstances [such as are present here] would be contrary to that clear legislative choice."