Opinion
# 2015-018-645 Claim No. 124485
09-28-2015
HARRY AYRHART v. STATE OF NEW YORK
HARRY AYRHART Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of counsel
Synopsis
Evidence does not support that the Defendant knew or should have known of the assault against Claimant. Claimant's cause of action for failure to properly care for his injuries is not supported by the evidence. Claimant did not establish the State was negligent or interfered with his medical care. This Court lacks jurisdiction over actions involving the Federal Constitution. Claim is dismissed.
Case information
| UID: | 2015-018-645 |
| Claimant(s): | HARRY AYRHART |
| Claimant short name: | AYRHART |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124485 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | HARRY AYRHART Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of counsel |
| Third-party defendant's attorney: | |
| Signature date: | September 28, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim alleges negligence, medical malpractice, and cruel and unusual treatment of Claimant while he was incarcerated at Gouverneur Correctional Facility (GCF). Claimant alleges he was attacked by another inmate on October 30, 2013, and he was punished with 20 days confinement in the Special Housing Unit (SHU). He was released from the SHU early, without explanation, and he then was assaulted by another inmate in the same gang as the earlier assailant that same day. Claimant alleges he was not given proper medical care, and when placed in the SHU in protective custody after the second assault, he was denied all recreation and moved further away from his family.
Claimant presented no evidence that he was denied recreation in the SHU or moved away from his family so that portion of the claim is deemed abandoned (see Power v McDonald's Corp. 188 AD2d 752, 753 [3d Dept 1992]; Noce v Kaufman, 286 AD 531, 532 [4th Dept 1955]).
At the trial, held on August 3, 2015, Claimant testified on his own behalf. The State called one witness, Correction Officer John Simmons.
On October 30, 2013, Claimant testified he was attacked by Inmate Lazon while in his cube at GCF. He was issued a misbehavior report, found guilty, and given 20 days in the SHU. His appeal of the misbehavior findings was denied, yet, he was released from the SHU early on November 9, 2013, and returned to general population.
That night, on his way to dinner, another inmate, Inmate Amador, attacked him and stabbed him in the face with a pencil. Claimant was taken to the infirmary and then to E. J. Noble Hospital in Gouverneur. A CT scan was performed to determine if any of the pencil remained in Claimant's face. He received no stitches. Later that night, Claimant was returned to the facility infirmary and then placed in administrative SHU. On November 11, 2013, Claimant said he had a follow-up visit at the infirmary and was seen by the facility doctor on November 21, 2013. He has a scar from the stabbing. Claimant testified that the correction officers who brought him to E. J. Noble Hospital on November 9, wanted to return promptly to the facility and discouraged further treatment for him from the hospital providers.
Claimant contends that the State was negligent for releasing him from the SHU early, giving Inmate Amador the opportunity to attack him. Furthermore, Claimant believes his injury should have been sutured and that would have prevented the scar.
On cross-examination, Claimant acknowledged that he did not ask to stay in the SHU for the full 20 days, did not request protective custody before November 9, 2013, and Inmate Amador who assaulted Claimant on November 9, 2013, was not on Claimant's enemies list.
Defendant called Correction Officer Simmons who had been employed for 13 years at GFC. He testified that on November 9, 2013, while supervising the inmates going to dinner, he saw Claimant and Inmate Amador rolling down the hill, punching each other, and he called the response team. He prepared a misbehavior report regarding the incident. Both inmates were taken to the infirmary. Inmate Amador had redness on one side of his face, and he was sent to the SHU.
At the infirmary, Claimant was found to have a puncture wound to the bridge of his nose near his eye, from a pencil. Claimant was examined by a physician at the facility at 6:22 p.m., and there was concern the pencil tip was still in the wound. Claimant was transferred to E. J. Noble Hospital, a CT scan was taken and a small chip fracture was noted. No pencil tip was found. The wound was cleaned and dried. Although the medical records confirm that the correction officers with Claimant at the hospital wanted him returned to the facility infirmary, there is no indication Claimant was released before necessary care was provided. The only additional treatment noted in the medical records was monitoring Claimant's blood pressure, and the nursing notes reflect this care was done at the hospital despite the correction officers' request. There is no reference to a need for sutures or other treatment of the puncture wound.
Having taken physical custody of the inmates in its correctional facilities, the State owes a duty to safeguard those inmates from the foreseeable risk of attack from fellow inmates (Sanchez v State of New York, 99 NY2d 247, 252 [2002]). The duty does not, however, demand the State guard each inmate from the risk of any injury caused by another inmate, rather the State owes a duty of reasonable care, to protect inmates from the risks of harm it knew or should have known existed (Id. at 253-255; Melvin v State of New York, 101 AD3d 1654 [4th Dept 2012]).
Here, the evidence does not support that the State knew or should have known that releasing Claimant from the SHU on November 9, 2013, would place him at risk of being assaulted or injured. The inmate who assaulted Claimant on October 30, 2013, was still in the SHU on November 9, 2013. Claimant did not request protective custody prior to the second assault, and the inmate who assaulted Claimant on November 9, 2013, was not on Claimant's list of enemies. There was no evidence to support that the State should have anticipated and protected Claimant from this second assault.
As for Claimant's cause of action for the State's alleged failure to properly care for his injuries this, too, was not supported by the evidence. Claimant's puncture wound was initially evaluated at the facility infirmary, and neither there or in the Emergency Department at E. J. Noble Hospital was a suture provided. Although Claimant feels a suture was necessary, he has no medical expertise and whether a wound needs to be sutured, particularly under these facts, is not within the knowledge of a lay person. To establish a cause of action for medical malpractice, there must be evidence to show what the proper care should have been and how the care received deviated from that standard and proximately caused injury (see James v Wormuth, 21 NY3d 540, 545 [2013]; Hytko v Hennessey, 62 AD3d 1081, 1083-1084 [3d Dept 2009]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]). Claimant presented no medical expert, and thus failed to establish a prima facie case of medical malpractice.
Claimant also did not establish the State was negligent or interfered with his medical care when the correction officers requested his discharge from the Emergency Department at E. J. Noble Hospital. The medical records do not support that the hospital Emergency Department staff released Claimant at the behest of those correction officers. Rather, the evidence reflects all necessary care occurred in the hospital.
To the extent the claim raised a constitutional tort claim for cruel and unusual punishment, this Court lacks jurisdiction over actions involving violations of the Federal Constitution (Shelton v New York State Liq. Auth. 61 AD3d 1145, 1151 [3d Dept 2009]). A cause of action for a violation of the State Constitution for cruel and unusual punishment, even if potentially viable here, does not meet the limitations for recognition of a constitutional tort claim in this Court (Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]). In any event there was no evidence that Defendant showed a deliberate indifference to Claimant's medical needs (see Estelle v Gamble, 429 US 97 [1976]).
Accordingly, the claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.
September 28, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims