New York State Court of Claims

New York State Court of Claims
SELLERS v. STATE OF NEW YORK, # 2018-015-169, Claim No. 124322, 124360


Claims alleging wrongful confinement and medical negligence were combined for trial and dismissed. With respect to the wrongful confinement claim, claimant was properly confined to the SHU pending the conclusion of the Tier III disciplinary hearing. With respect to the claim alleging injuries for medical negligence, claimant's failure to present expert medical testimony required dismissal.

Case information

UID: 2018-015-169
Claimant short name: SELLERS
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124322, 124360
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Khaliyq Sellers, Pro Se
Defendant's attorney: Honorable Barbara D. Underwood, Attorney General
By: Michael Rizzo, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 16, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Trial of the following claims, Claim Number 124322 and Claim Number 124360, was held on August 23, 2018.

Claim Number 124322 concerns an altercation between the claimant, Khaliyq Sellers, and Correction Officer B. Lopez at the Ulster Correctional Facility on January 31, 2014. The claimant testified at trial that, on that date, he returned to his dormitory from a medical appointment at approximately 1:30 p.m., after the 1:00 p.m. expiration of the inmate movement period. The claimant approached Correction Officer Lopez and requested permission to attend the religious services. Officer Lopez informed him that inmates were not permitted movement within the facility except during designated periods. The claimant then reminded Officer Lopez that she had provided him a personal escort to religious services the week prior, when he had also missed the inmate movement period. In denying claimant's request for a personal escort, Correction Officer Lopez "became irate"(1) , cursing the claimant and using profanity, and making disparaging references to his religion. She then asked the claimant whether he wanted to make a grievance. Claimant requested a grievance form and was instructed by Correction Officer Lopez to return to his cell. Claimant testified that he was not acting in an aggressive manner and returned to his cell when instructed to do so by Officer Lopez. A sergeant came to the scene and spoke with Correction Officer Lopez while another unidentified correction officer spoke to the claimant in his cell. Claimant was eventually handcuffed and taken outside the dormitory to the facility Special Housing Unit (SHU) where he was held pending a Tier III disciplinary proceeding on charges of creating a disturbance, harassment, refusing a direct order and threats. Claimant was found not guilty on all charges following the hearing and was later transferred to another correctional facility.(2) Claimant alleges he was wrongfully confined from January 31, 2014 to February 10, 2014.

On cross-examination the claimant agreed that Correction Officer Lopez issued an Inmate Misbehavior Report charging him with various offenses on January 31, 2014. A Tier III hearing commenced on February 5, 2014 and concluded on February 10, 2014. He was confined in the Special Housing Unit for a total of 11 days.

Claimant also confirmed that during the disciplinary hearing he was given the opportunity to call witnesses and that Correction Officer Pertilla, who was present during the altercation between the claimant and Correction Officer Lopez and testified on his behalf, generally supported his version of the encounter.

At the conclusion of claimant's proof, the defendant moved to dismiss the claim arguing the actions of the correction officers involved in issuing the Inmate Misbehavior Report, investigating the incident and participating in the hearing and determination of the charges are absolutely immune from liability in the absence of procedural errors. Defendant also argued, with regard to any claim of infringement of claimant's free exercise of religion, that pursuant to Correction Law 610 (3) proceedings involving such allegations are required to be brought in the Supreme Court.

With regard to Claim Number 124360, claimant testified he injured his right ankle while playing basketball at the Washington Correctional Facility on May 1, 2014. He went to the facility infirmary and was provided crutches and an ace bandage. The next day the claimant returned to his cell following lunch and "dozed off", missing the inmate movement period which would have enabled him to attend religious services. Claimant awoke and rushed out of his cell, without the use of his crutches, in an attempt to participate in the movement of prisoners and attend his religious services. He testified that because of the time pressure involved, he left his crutches attached to the frame of his bed, explaining that he had secured the crutches to the bed frame in order to prevent other inmates from stealing or otherwise removing them. As claimant proceeded down the walkway to the area where religious services were being held a correction officer inquired regarding the absence of his crutches. Claimant explained that his ankle was, in fact, injured and that he was still in pain, but he had not had time to take his crutches and still participate in the movement to religious services. The correction officer instructed the claimant by direct order to retrieve his crutches and return them to the infirmary. Claimant returned to his housing unit, obtained his crutches, and went to the infirmary where he met with a nurse. After speaking with the nurse, claimant returned his crutches and "hobbled" back to his cell.

Two days later, on May 4, 2014, claimant was returning to his cell after making soup when he experienced a sharp pain in his right ankle which caused him to fall, re-injuring the ankle. Claimant's fall was witnessed by a correction officer, and the claimant was sent to the infirmary where he met with a physician who provided him with crutches and an ace bandage. A new permit allowing his possession of the crutches was issued several days later. Claimant alleges that the nurse who required that he return his crutches on May 2, 2014 did not have authority to do so because the devices had been previously ordered by a physician.

On cross-examination claimant confirmed that he injured his right ankle playing basketball at Washington Correctional Facility on May 1, 2014. He attended the infirmary and was provided ice, an ace bandage and crutches. He denied that on May 2, 2014 he attempted to go to the yard without utilizing his crutches, testifying instead that he was attempting to attend religious services and that the gates leading to both religious services and the yard were located within the same area. As directed by a correction officer, he returned his crutches and ace bandage to the infirmary on the same date. Following the fall in his dormitory, he again appeared at the infirmary and was provided crutches and an ace bandage. The claimant agreed that at some point prior to June 4, 2014 he exchanged his crutches for a cane.

The defendant moved to dismiss the claim at the conclusion of claimant's proof arguing that there is no medical evidence to support a claim of medical malpractice or negligence. The defendant also argued that any claim that the claimant's religious freedom was abridged is required to be brought in the Supreme Court pursuant to Correction Law 610 (3).

As to claim number 124322, to establish a cause of action for wrongful confinement, the claimant must "demonstrate that the defendant intended to confine the [claimant], that the [claimant] was conscious of the confinement, that the [claimant] did not consent to the confinement and that the confinement was not privileged" (De Lourdes Torres v Jones, 26 NY3d 742, 759 [2016]; see also Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). Inmates in medium or maximum security prisons such as Ulster County Correctional Facility may be housed in a special housing unit awaiting disposition of a Tier II or Tier III hearing (7 NYCRR 301.3, 301.6). Even when such confinements are accomplished in bad faith, unless the employees exceed the scope of their authority or violate one of the required due process safeguards (7 NYCRR 251-5.1; parts 252-254), the State is nevertheless entitled to absolute immunity for discretionary disciplinary determinations (Arteaga v State of New York, 72 NY2d 212, 214 [1988]; Miller v State of New York, 156 AD3d 1067 [3d Dept 2017]). Here, claimant's confinement to the SHU was authorized pending completion of his disciplinary hearing and he was released from the SHU upon the conclusion of the hearing. Consequently, prison authorities did not exceed the scope of their authority or violate a due process safeguard. As a result, claimant's 11-day keeplock confinement pending the completion of his Tier III disciplinary hearing was privileged.

Claimant's contention that his right to the free exercise of his religious beliefs was curtailed lacks merit. Under Correction Law 610, such claims may only be asserted "in the supreme court of the district where [the correctional] institution is situated." As the Appellate Division, Third Department, recently made clear, it is the Supreme Court that the Legislature

" 'authorized and empowered to enforce the provisions of this section' " (Oppenheimer v State of New York, 152 AD3d 1006, 1008 [3d Dept 2017], quoting Correction Law 610 [3]; see also Matter of Rivera v Smith, 63 NY2d 501, 510 [1984]). The statute therefore creates a cause of action that may only be asserted in Supreme Court in a proceeding pursuant to CPLR article 78.

Lastly, no cause of action for cruel and unusual punishment under the New York State Constitution will lie where the claimant has an adequate remedy in an alternate forum (Inmate M. v State of New York, 164 AD3d 1629 [4th Dept 2018]; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 [3d Dept 2009]). Finally, even the most liberal view of the allegations in this claim would not sustain a cause of action for cruel and unusual punishment (Wilkinson v Skinner, 34 NY2d 53 [1974]).

Accordingly, defendant's motion for judgment dismissing claim number 124322 as a matter of law is granted.

Turning to claim number 124360 alleging the improper removal of claimant's crutches, 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]). Where only nondiscretionary medical protocols are alleged to have been breached, a cause of action for ministerial neglect is stated (Kagan, 221 AD2d at 10-11). Under such a theory, liability does not attach absent competent medical evidence that the alleged negligence was a proximate cause of the claimant's ensuing medical problems (McFadden v State of New York, 138 AD3d 1167 [3d Dept 2016], appeal dismissed 28 NY3d 947 [2016]; Knight v State of New York, 127 AD3d 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015]; Myers v State of New York, 46 AD3d 1030, 1031 [3d Dept 2007]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]; Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]). Here, even if it were assumed that claimant's crutches were improperly removed by a nurse at the direction of a correction officer, claimant failed to establish through the submission of medical evidence that the removal of his crutches was a proximate cause of his subsequent fall and ensuing medical problems.(3) Accordingly, claimant failed to demonstrate a prima facie case of medical negligence as a matter of law.

Accordingly, defendant's motion for judgment dismissing claim number 124360 as a matter of law is granted.

Let judgments be entered accordingly.

October 16, 2018

Saratoga Springs, New York


Judge of the Court of Claims

1. All quotes are taken from the audio recording of the trial unless otherwise noted.

2. Exhibit A, Hearing Record Sheet.

3. In fact, claimant's medical records indicate claimant was provided crutches by a nurse on May 1, 2014; claimant failed to appear for a medical callout on May 2, 2014 because he was sleeping, and he "[r]efused all care- returned ACE, crutches and wanted to refuse sick slip" (Exhibit A, Ambulatory Health Record Progress Note dated May 4, 2014).