New York State Court of Claims

New York State Court of Claims
ELLIS v. THE STATE OF NEW YORK, # 2019-053-023, Claim No. 130958

Synopsis

After a trial of the pro se inmate's claim for negligence, the Court dismissed the claim finding that claimant failed to establish that a dangerous condition existed.

Case information

UID: 2019-053-023
Claimant(s): MATTHEW ELLIS
Claimant short name: ELLIS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130958
Motion number(s):
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: MATTHEW ELLIS, Pro Se
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Thomas G. Ramsay, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 16, 2019
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Matthew Ellis alleges that on December 5, 2016, he sustained personal injuries as a result of the negligence of correction officers employed by the State of New York Department of Corrections and Community Supervision (DOCCS) while incarcerated at the Groveland Correctional Facility (Groveland). On or about February 4, 2017, claimant served a copy of his notice of intention to file a claim upon the Attorney General and on February 6, 2018, filed a claim with the Clerk of the Court of Claims and served a copy upon the Attorney General. On March 8, 2018, the State of New York filed an answer denying the allegations in the claim.

On October 31, 2019, a trial was held utilizing video conference technology. Claimant testified and testimony was also received on behalf of the defendant from Correction Officer Benjamin Cohen (CO Cohen) and Sergeant K. Waters (Sgt. Waters).

FACTS

The claimant testified that he was housed in J Block, which was the special housing unit (SHU) at Groveland. On December 5, 2016, claimant was being escorted from SHU to an administrative hearing in the basement of J Block. In accordance with a DOCCS procedure, the claimant had been provided with Converse sneakers without laces to walk in while he was housed in SHU. Prior to being escorted to the hearing, claimants' hands were placed in shackles in front of him that were then attached to a waist chain around him. Claimant stated that he was escorted by CO Cohen, who walked behind him. In order to attend the hearing, claimant descended two flights of stairs. At the conclusion of the hearing, claimant was then escorted by CO Cohen back up the same staircase to return to his cell in SHU. He testified that he had taken about 15 steps to reach the first landing and as he turned to proceed up the next set of stairs, his left sneaker fell off and he fell forward onto his left side on the staircase. Claimant testified that CO Cohen then helped him up and reported the incident to Sgt. Waters. Claimant was then taken to the infirmary.

In the Inmate Injury Report (Exhibit 1), claimant stated that he "fell up the stairs my shoes don't have no laces I lost traction and I fell. I fell up the stairs my ribs hurt on left side." The registered nurse, Nurse Koronas noted in that same report that she found a "reddened area on left side lower torso. Good Range of motion. Able to take deep breath without difficulty." She prescribed Motrin to claimant for pain. Claimant testified that he was told that if the pain persisted an x-ray would be ordered. Thereafter, claimant was discharged back to SHU. A memorandum prepared by Sgt. Waters to Lt. Ingles dated December 5, 2016 (Exhibit 2) confirmed these facts and that claimant was told that if the pain persisted, he would be scheduled for an x-ray. A health record progress note dated December 7, 2016 stated that claimant complained of rib and back pain and that the nurses plan was to try and get an x-ray that day. Claimant testified that no x-ray was taken, that he was unable to sleep that night and bruising then appeared. He stated that the nurse stopped by his cell the following morning to see the bruising and she told him that she would order an x-ray. Before the x-ray was taken, claimant was transferred to the Collins Correctional Facility (Collins) for three months. Claimant testified that during the time period that he was at Collins, he saw a doctor on only one occasion and no x-ray was taken.

On January 11, 2017, claimant filed a grievance for the alleged failure to provide him with treatment for his injuries. After a hearing on January 17, 2018, claimant's grievance was unanimously accepted in part to the extent of upholding the Superintendent's determination, that claimant did not present evidence of improper medical care or malfeasance by staff and that he was to address further concerns utilizing sick call at his present facility (Exhibit 3). This decision also set forth that between December 28, 2016 and December 19, 2017, claimant was seen by his medical provider on eight occasions and that x-rays were scheduled on two separate occasions but that he was transferred to another facility before they were completed. This decision further stated that x-rays were taken on April 11, 2017 and November 16, 2017. On May 2, 2017, claimant was seen by a neurologist and was admitted to a hospital for further testing, which included an MRI.

Claimant testified that he was transferred from Collins to the Franklin Correctional Facility and then to Mid-State Correctional Facility. He testified that he saw the neurologist while he was at Mid-State, where he was also provided with physical therapy. Claimant sought to introduce as Exhibit 8 copies of 15 Sick Call Request forms dated between January 17, 2017 and March 26, 2017. These documents were not provided to the Assistant Attorney General in advance of the trial as required and the defendant objected to their admission at trial. The Court reserved decision as I had not had an opportunity to review the documents in advance of the trial. The Exhibit 8 documents were forwarded to me following the trial and upon reviewing them, I find that what is contained within the sick call forms is consistent with claimant's testimony, describing that he was in pain, asking to see a doctor and to have an x-ray. The sick call forms are contemporaneous documents submitted by claimant to obtain an appointment in the facility infirmary. Claimant's testimony was consistent with the notations in these forms. Claimant's testimony and his notations in the sick call forms was subject to cross-examination during the course of the trial. As such, I find that Exhibit 8 is admissible for the limited purpose of corroborating claimant's trial testimony for the time period encompassed by the sick call forms.

The claimant submitted the notes of the physical therapist (Exhibit 6) dated April 5, 2017 to June 30, 2017. These notes indicate that claimant experienced pain in his mid-back and that an MRI on May 3, 2017 revealed disc protrusion at T3-T4 and T7-T8 without nerve impingement. Physical therapy was prescribed for claimant twice per week for four weeks to reduce his pain and increase his range of motion.(1) Claimant testified that at the conclusion of the physical therapy, he experienced little change in his symptoms other than a little more range of motion. The MRI report (Exhibit 5) confirmed the notation in the physical therapy records of a finding of a central disc protrusion at T3-T4, a paracentral protrusion at T6-T7 and a central disc protrusion at T7-T8 without evidence of spinal cord or nerve root impingement.

Claimant testified that following physical therapy, he was seen by a doctor and continued on Motrin 800 mg. for the remainder of 2017. He was placed on limited work duty and was told not to lift more than 20 lbs. He was out of work for seven to eight months. At trial, claimant testified that he was still experiencing chronic back pain in his mid-back and described it as a constant, stabbing pain. He stated that he performed the exercises recommended by the physical therapist and is taking yoga, both of which have helped his condition. He is currently incarcerated at the Mohawk Correctional Facility and has received no medical treatment over the past eight to nine months. Claimant testified that he was told that no further medical treatment was necessary and that he was to continue his exercise regimen.

On cross-examination, claimant testified that he had previously been hospitalized for two broken ankles in May 2010, which were caused when he jumped or fell from stairs while he was inebriated. Claimant also admitted that he previously broke his clavicle in a bicycle accident. He did not recall whether he had previously sustained a shoulder injury. With respect to the issuance of sneakers without laces, claimant testified that it was his understanding that everyone in SHU had to wear sneakers this way.

The next witness to testify was CO Cohen, who stated that he has been employed with DOCCS for the past 4 years. On the day of the incident, CO Cohen was ordered to escort claimant to his administrative hearing and testified that claimant tripped and fell forward onto the stairs while he was being escorted back to SHU. He testified that claimant got up on his own and then continued back to his cell. During his questioning by claimant, CO Cohen admitted that some correction officers hold the waist chain that is attached to the shackles when escorting an inmate up or down stairs, but he was not aware of any procedure mandating that he do so. CO Cohen testified that he did not recall holding claimant's waist chain when claimant went down the stairs on the day of the incident. CO Cohen also testified that it was a common practice statewide for inmates in SHU to wear sneakers without laces and be shackled in the manner he described when being escorted from SHU.

In response to questions from the Assistant Attorney General, CO Cohen testified that the staircase was not wide enough for him to walk alongside claimant and that he was positioned behind claimant as he proceeded up the stairs. CO Cohen testified that he positioned himself a safe distance behind claimant for his own safety and in order to be able to prevent claimant from falling backward. He also testified that he observed claimant falling forward onto the staircase and that claimant was able to get up on his own. CO Cohen testified that after falling, claimant did state to him that he was experiencing a little bit of pain. He then escorted claimant back to his cell and notified Sgt. Waters of the incident.

Sgt. Waters testified that he has been employed by DOCCS for 31 years and that at the time of the incident, he had been the supervisor of J Block for the previous ten years. He testified that inmates falling while walking up the staircase has previously occurred but he could not recall how many times. Sgt. Waters was questioned by claimant as to why two correction officers did not escort him as claimant had previously observed. Sgt. Waters responded that occasions when two officers are utilized to escort an inmate is determined after evaluating the mental disposition of the inmate.

In response to questioning by the Assistant Attorney General, Sgt. Waters testified that sneakers without laces are commonly issued to inmates in SHU statewide as a suicide prevention measure and that this procedure is followed for all inmates, regardless of the inmate's mental health. LAW AND ANALYSIS

The law is well settled that when the State assumes custody of an inmate, it owes that inmate a duty to use reasonable care to safeguard him from foreseeable risks of harm (Sanchez v State of New York, 99 NY2d 247 [2002]). This duty of care to prevent foreseeable risks of harm is defined not simply by actual notice but also by constructive notice, i.e., what the State " 'knew or had reason to know' " and to what the State " 'is or should be aware' " (Id. at 255). However, the State is not an insurer of inmate safety and a claimant must demonstrate a failure by the State to take minimal protective measures when it knows or has reason to know of the likelihood that the harm suffered was a reasonably foreseeable consequence of the State's acts or omissions (Melendez v State of New York, 283 AD2d 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]).

In order to establish a cause of action for negligence, the claimant must demonstrate by a preponderance of the credible evidence that: (1) the State owed a duty of care; (2) a dangerous condition existed that constitutes a breach of that duty; (3) the State had actual or constructive notice of that dangerous condition for a reasonable and sufficient length of time to be able to remedy that condition; and (4) the condition was a substantial factor in causing the claimant's injuries (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660, 660-661 [3d Dept 2011]). As stated above, the duty owed to claimant in this action was to use reasonable care to safeguard him from foreseeable risks of harm.

In order to determine whether claimant has met his burden of proof, the Court, as fact-finder, must weigh the evidence presented and assess the credibility of the testimony of claimant and of the two correction officers. The existence of a dangerous condition is a question of fact to be determined based upon the particular facts and circumstances of the case (Lupa v City of Oswego, 117 AD3d 1418 [4th Dept 2014]; Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]).

In the present action, Sgt. Waters testified that he was aware of other occasions where an inmate in SHU had fallen on a staircase while being escorted and wearing sneakers without laces. Sgt. Waters was not asked whether the prior instances where inmates had fallen forward were caused by the use of sneakers without laces. He also did not testify to how many occasions these falls had previously occurred. Other than this one statement by Sgt. Waters, claimant provided no other proof to establish that the DOCCS policy of issuing sneakers without laces to inmates in SHU and requiring the inmates to wear these sneakers while walking up or down a staircase constituted a dangerous condition. Sgt. Waters testified that he understood that the basis for this particular policy was as a safety precaution to prevent suicides involving inmates in SHU. As such, the State established that there was a reasonable basis for this policy and claimant did not submit any proof to establish that uniformly administering this policy to all inmates in SHU created a dangerous condition for inmates who were being escorted outside their cells. Accordingly, I find that the record at trial does not support a conclusion that the enforcement of the policy requiring claimant to wear sneakers without laces when he was escorted to and from his disciplinary hearing created a dangerous condition and thereby, a foreseeable risk of harm to claimant.

After consideration of all of the evidence produced at trial and listening to the testimony of claimant, and of CO Cohen and Sgt. Waters, and observing their demeanor while doing so, I find that claimant has failed to establish that a dangerous condition existed by the mere use of the sneakers issued to him while in SHU. In that I find that there was no dangerous condition established, the additional elements of a negligence cause of action, i.e., whether the defendant had actual or constructive notice of that dangerous condition for a reasonable and sufficient length of time to remedy that condition; and whether the condition was a substantial factor in causing the claimant's injuries need not be addressed. As a result, the Court determines that claimant has failed to establish by a preponderance of the credible evidence that the State was negligent in connection with this claim.

Accordingly, this claim is hereby dismissed. Any and all other evidentiary rulings or motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.

Let judgment be entered accordingly.

December 16, 2019

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims


1. Exhibit 6 at page 2, "Reason for Consultation".