Court dismisses claim finding Claimant did not establish that the State was negligent in conducting a contraband watch, the actions of correction officers were discretionary, and Claimant did not prove he suffered any injury.
|Claimant(s):||RICKY R. STEWART, JR.|
|Claimant short name:||STEWART|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||RICKY R. STEWART, JR.
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Bonnie Gail Levy, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 15, 2019|
|See also (multicaptioned case)|
Claimant, proceeding pro se, brought this claim seeking damages for pain and suffering and mental anguish because the State, through its employees at Watertown Correctional Facility (WCF), allegedly failed to follow the directives for conducting a contraband watch. Claimant lists the procedures in Directive 4910 that were not followed during the contraband watch. The liability trial was conducted on February 6, 2019, and there were two witnesses, Claimant and Correction Officer (CO) Jeffery LaRose, for the State. After listening to the witnesses and reviewing the documentary evidence, the Court finds Claimant failed to prove the State's liability.
Claimant testified that on January 28, 2017, after having a visitor, he was handcuffed and taken to the Special Housing Unit (SHU) and placed in a special watch cell. He was told that if he had two significant bowel movements free of contraband he would be released. To collect his feces, the CO assigned to the contraband watch slid a bedpan with a plastic bag around into Claimant's cell. Claimant would then have to squat above it while he had a bowel movement. According to Claimant, he had arthritis in his knees and irritable bowel syndrome so squatting over the bedpan caused him pain. Furthermore, he had diarrhea from his illness. He was embarrassed and humiliated, and when he had his third bowel movement he got feces all over himself and had to clean himself.
Claimant also complained that the CO on duty, CO LaRose laughed at him and said "Wow, did you hear that blowback?" Claimant testified that these comments and the manner of collection caused him severe emotional distress, and he still has nightmares and difficulty going to the bathroom in public places. Claimant testified that when he was at other correctional facilities, on contraband watch, a portable toilet chair was provided which he found more humane.
As part of Exhibit A, Defendant admitted into evidence certified copies of records that included a portion of Directive 4910. The portion of the directive admitted into evidence describes the procedures for "Drug and Special Watches - Temporary Isolation."(1) That section indicates how such a watch is authorized, the location, furnishings and procedures. In the claim, Claimant takes issue with the procedures for conducting the contraband watch.
In the claim,(2) Claimant also alleges that he was denied access to water and soap to wash up in accordance with the directive - he testified he was permitted to wash only 4 times, and he should have been allowed to clean up 11 times based upon what he asserts the directive requires.(3) Claimant also testified that he was denied his medications, and the overhead light in his cell was left on 24 hours a day which made it hard for him to sleep. Claimant also complained that he was held approximately 25 hours after his second bowel movement in violation of the directive. Claimant admitted on cross-examination that he was only held on the contraband watch for 48 hours.
Claimant filed a grievance with the facility regarding CO LaRose's comments and his treatment while on contraband watch.(4) The grievance was denied on the grounds that CO LaRose denied making the alleged harassing comments, Claimant provided no witnesses, and no violation of any policies was shown.
On cross-examination, Claimant acknowledged that after his visitation on January 28, 2017, Vaseline was found on his rectum and that is the reason he was placed on contraband watch. He also acknowledged that his allegations against the State involve intentional behavior - requiring him to use a bedpan on the floor, withholding soap and water for washing, and failing to release him after his second bowel movement. Claimant insisted that although he alleged in his claim that he was caused to suffer cruel and unusual treatment during the contraband watch, his claim does not involve a civil rights or constitutional tort cause of action. He repeatedly indicated that he was seeking damages for the State's negligent conduct, because they knew or should have known that having him defecate in the bedpan on the floor would cause him embarrassment and injury due to his other health issues. He denied any permanent physical injuries.
The State called CO LaRose, one of the officers assigned to the one-on-one surveillance of Claimant during the contraband watch. He explained the process for a contraband watch. The special observation cells used are about 7 x 9 feet with a frosted window to the outside for light and a steel door with mesh grate to allow the officers to communicate with the inmate. At the bottom of the door there is a sliding hatch to allow items to be passed to the inmate, such as the bedpan. There is a steel bed and a table with attached seat. There is also a sink and toilet, but during a contraband watch the water is turned off and the toilet is sealed closed. CO LaRose said precautions, such as disabling the sink and toilet, are taken to prevent an inmate from discarding or ingesting any contraband. The officer is also required to be able to observe the inmate's hands and head at all times, and this is the reason the light is kept on all night.
CO LaRose also described the procedures for the logbook. The officer on duty is required to make regular entries in the logbook - in this case every 15 minutes - noting the inmate's activity. The logbook(5) shows entries every 15 minutes by the CO assigned to watch Claimant. When asked about only three notations in the logbook reflecting when Claimant was provided with items to wash, CO LaRose testified that although all activity is required to be documented, some activities, like providing water and soap for washing may not always be noted. CO LaRose testified that if the officer on observation has to leave for a telephone call or is on break, another officer fills in and may not make an entry, or the observation officer may not feel a particular occurrence significant enough to warrant an entry, or he may be distracted by other things which may be happening. CO LaRose did not feel that the failure to enter such information in the log would be a failure to follow the rules. He also indicated some of the information may be documented in other logbooks by supervising officers who also check on the inmates under watch.
CO LaRose's description of the procedure for excrement collection was consistent with Claimant's description. The officer testified that he has never seen a portable, geriatric type, toilet chair used. He testified that he has conducted hundreds of contraband watches and has never used any means other than the bedpan for collection. After the inmate used the bedpan and it is removed from the cell, the inmate is given warm water, soap, and a cloth to clean himself. The inmate must have two significant and negative for contraband defecations within 48 hours before he is released. Claimant defecated three times within 48 hours but one bowel movement was deemed insignificant. CO LaRose testified that although the officer on duty may deem the collection significant, that decision is ultimately made by the supervisor.
CO LaRose also stated that COs are unaware of an inmate's medical condition. Medical staff visit the inmate at least once every 24 hours during a contraband watch. Nurse Banker examined Claimant at 4:30 the first afternoon he was under watch, and Nurse Schofield saw him at 1:15 p.m., just prior to his return to general population on January 30, 2017.
The State moved for dismissal of the claim at the close of Claimant's case and again at the end of the trial. Defendant made four arguments for dismissal: Claimant did not prove any injury; the claim is actually based on a civil rights violation under the 8th Amendment of the U.S. Constitution over which this Court lacks subject matter jurisdiction, the acts of which Claimant complains are intentional and, therefore, subject to a one-year statute of limitations rendering the claim untimely,(6) and also that the actions of the COs during the contraband watch involve matters requiring discretion for which the State is immune from liability under Arteaga v State of New York, 72 NY2d 212 .
After consideration of all of the evidence, the Court will grant Defendant's motion on the grounds that the State's actions in conducting the contraband watch involve discretionary actions for which the State is immune from liability and, alternatively, Claimant did not establish a negligence cause of action - no evidence the State breached its duty or that Claimant suffered a compensable injury.
Despite Claimant's language in the claim that his treatment while under contraband watch was cruel and unusual treatment, he adamantly refuted Defendant's argument that he was asserting a constitutional tort or civil rights violation. Claimant insists that he intended to assert only a negligence cause of action in his claim. Claimant does not take issue with his separation from general population, as in a wrongful confinement type of claim (compare Jenkins v State of New York, UID No. 2012-049-114 [Ct Cl, Weinstein, J., Oct. 16, 2012]), rather he asserts the State was negligent in how it conducted the contraband watch, specifically, the method of collection. In reviewing the State's directive for how a drug watch is to be conducted,(7) Claimant has not established any violation. How the collection of excrement is done, Claimant's primary complaint, is not specifically prescribed in the directive, but is rather left to the discretion of the facility.
The actions of prison officials in establishing rules and applying them to the widely changing circumstances within a prison to maintain order and control are actions that are quasi-judicial in nature and entitled to absolute immunity (Arteaga, 72 NY2d at 218-219). Conducting a contraband watch, like conducting the cell frisk in Holloway v State of New York, 285 AD2d 765, 766 (3d Dept 2001) falls "within the 'formidable tasks' of maintaining order and security in correctional facilities and protecting the safety of inmates and employees." (Arteaga, 72 NY2d at 218-219). These actions are subject to absolute immunity (Id.). The determination of how excrement collection will occur is discretionary and will not support a finding of liability. To the extent Claimant did not have the opportunity to wash up as provided in the directives, a failure to comply with the governing regulations, requires some showing that Claimant suffered some injury (see Gordon v State of New York, UID No. 2018-044-002 [Ct Cl, Schaewe, J., April 9, 2018]; Bennet v State of New York, UID No. 2006-013-003 [Ct Cl, Patti, J., Feb. 21, 2006]; Campolito v State of New York, UID No. 2000-015-507 [Ct Cl, Collins, J., April 27, 2000]). Here, CO LaRose explained that the absence of a notation in the logbook does not necessarily mean that soap and water were not provided to Claimant, however, even if the Court accepts Claimant's testimony, this does not establish his right to a damages remedy, and he did not show that he suffered any injury from a breach of the directive.
CO LaRose denied making the comments which Claimant alleged, however, even if he did, the comments are not actionable. New York does not recognize a common-law cause of action for harassment (Edelstein v Farber, 27 AD3d 202 [1st Dept 2006]). No action for intentional infliction of emotional distress may be maintained against the State (Ross v State Univ. of N.Y., 166 AD3d 1034 [2d Dept 2018]). Claimant did not establish a cause of action for negligent infliction of emotional distress. To establish this cause of action, Claimant must show that Defendant's conduct endangered Claimant's physical safety or caused him to fear for his own physical safety, unless the negligent conduct provides some assurance of genuineness, such as the mishandling of a corpse (see Kennedy v McKesson Co., 58 NY2d 500 ; Johnson v State of New York, 37 NY2d 378, 383-384 ). Here, Claimant did not present such proof.
Based upon the foregoing, the Court grants Defendant's motion and the claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.
April 15, 2019
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
1. Exhibit A, Directive 4910 "Control of and Search for Contraband", subparagraph J (1)-(4).
2. Exhibit B.
3. Exhibit B - in the claim he alleged that he was allowed to wash up only 4 times and he was denied soap and water 12 times.
4. Exhibit A.
5. Attached to Exhibits A and B.
6. This objection cannot be the basis for dismissal of the claim (Court of Claims Act section 11 [c]).
7. Exhibit A, Directive 4910, subparagraph J.