Opinion
# 2017-044-006 Claim No. 124116
05-04-2017
ANTHONY FRAGOSA v. THE STATE OF NEW YORK
ANTHONY FRAGOSA, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Inmate claimant's claim for wrongful transfer to another prison facility, and alleged injuries suffered as a result of falling from a top bunk, dismissed after trial. Inmates have no right to be housed at any particular facility, and Court has no jurisdiction to review decision to place claimant in a double-bunk cell.
Case information
| UID: | 2017-044-006 |
| Claimant(s): | ANTHONY FRAGOSA |
| Claimant short name: | FRAGOSA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124116 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | ANTHONY FRAGOSA, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 4, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover damages for personal injuries allegedly suffered when he fell from a top bunk while he was in the custody of the Department of Corrections and Community Supervision (DOCCS). Claimant asserts that he was wrongfully transferred from Elmira Correctional Facility (Elmira) to Attica Correctional Facility (Attica) where he was "doublebunked." Defendant State of New York (defendant) answered and asserted several affirmative defenses. A trial in this matter was conducted by video conference on March 30, 2017, with the parties appearing at Elmira, and the Court sitting in Binghamton, New York.
All quotes herein are taken from the Court's notes of the proceedings unless otherwise indicated.
At trial, claimant testified that he was transferred to Elmira on December 13, 2012, because he was going to be tested as a kidney donor for his stepdaughter. During the testing, it was discovered that he had a mass on his kidney. He was admitted to St. Joseph's Hospital on July 29, 2013 for a nephrectomy (kidney removal), which went well.
Claimant's Exhibit 3.
Claimant was scheduled for a callout with a counselor on October 2, 2013, but the record indicates that he was not present for either that interview or a rescheduled interview. Claimant testified that he was transferred from Elmira to Attica on December 23, 2013, without being given any reason for the transfer. He stated that he met with ORC Bird on December 31, 2013 for an admission interview, at which time he was told that he had been transferred due to his own request. He submitted a document entitled "Guidance Information Management System - Transfer Review" which indicates, as an explanation for the transfer: "[claimant] eligible for a 01-01 latteral [sic] transfer [claimant] requested to transfer. . . . [Claimant] dosen't [sic] have a specfic [sic] hub he would like to transfer to just wants to leave Elmira." The document indicates that Kenneth Donley was the assigned counselor for the transfer review. Claimant further submitted a chronological report of claimant's activities which states that on October 21, 2013 "[claimant] was a no show on 2 occasions for his str review." Claimant filed a grievance regarding his transfer, in which he stated:
Claimant's Exhibit 4.
Claimant further asserts that Offender Rehabilitation Counselor (ORC) Donley falsified department records in order to transfer claimant.
Claimant's Exhibit 6.
Claimant's Exhibit 7.
Claimant's Exhibit 8 at 2.
[m]y last transfer review was April 2013 in Elmira, and at that time I signed my review with "present placement appropriate." On Dec. 23rd 2013 I was transferred here to Attica, and my counselor states that the computer says I "requested to leave Elmira, with no preference." This is not true because I haven[']t seen a counselor or had a counselor quarterly review since April 2013, so someone erroneously put me in for a transfer without my knowledge.
Claimant's grievance was denied, as was the appeal, which noted that "Correction Law grants the Department of Corrections and Community Supervision the discretion to transfer inmates between its correction facilities, and that inmates are not entitled to house in a hub or correctional facility of their choice." On January 1, 2014, claimant wrote to DOCCS Classification and Movement department to complain of the transfer. In response, he was advised that his placement was deemed appropriate. In March 2014, claimant filed another grievance, contending that ORC Donley had falsified records by initiating a transfer to another facility without claimant's knowledge or permission. The Inmate Grievance Resolution Committee (IGRC) response noted that Donley was on leave at the time of the transfer, but noted that his backup had stated that he or she denied transferring inmates (including claimant) without their consent. The response further noted that guidance records indicated that claimant had failed to show up for several transfer reviews. Claimant's appeal of this determination was denied by Central Office Review Committee (CORC), which noted that claimant did not have the right to choose where he would be housed, and also that insufficient evidence had been presented to substantiate any malfeasance by staff.
Id. at 5.
Claimant's Exhibit 9.
Id. at 4.
Claimant's Exhibit 12 at 2.
Id. at 3.
Id. at 5.
Claimant testified that on January 3, 2014 (subsequent to his transfer) he was moved into a double-bunk cell at Attica. He submitted a copy of the letter he wrote the facility Superintendent dated January 3, 2014, in which he noted that he should not be placed in a top bunk due to his kidney removal and medically impaired condition. Claimant testified that while climbing up to the top bunk on January 10, 2014, he fell, hurting his wrist, neck and back, and breaking his dental appliance. He sent letters to facility officials requesting to be seen by medical staff for his injuries, and noted that he had blood in his urine. By memorandum dated February 5, 2014, Nurse Administrator Michalek advised claimant that he was "scheduled to see a provider soon."
Claimant's Exhibit 10.
Claimant's Exhibit 11 at 2-3.
Id. at 4.
Claimant filed a grievance in April 2014 claiming that even though he was in severe pain, the Medical Staff only provided him with ibuprofen. He stated that because he only has one kidney, he cannot safely take the drug. The IGRC response noted that claimant had been seen by a provider on February 11, 2014, at which time "a [u]rology consult was requested and completed along with further testing." The IGRC further indicated that claimant was seen on April 29, 2014 to review the consultation and test results, and that claimant refused follow-up and further testing at that time. Finally, IGRC response stated that claimant's complaint of back pain had resulted in an x ray and medication being supplied to claimant. The Superintendent denied claimant's appeal. CORC upheld the Superintendent's finding, noting that claimant had been provided with acetaminophen for his pain.
Claimant's Exhibit 13 at 1.
Id. at 3.
Id.
Id. at 5.
Claimant next attempted to introduce medical records regarding imaging of his remaining kidney in March 2014. Counsel for defendant objected to admission of the documents on the ground of relevance, noting that the claim contained no cause of action regarding any medical malpractice or medical negligence regarding claimant's medical treatment. Claimant responded that the issue of blood in his urine had been raised in the complaint, and that he had never been examined to determine why it was there. The Court reserved determination at the time. During presentation of its case, defendant introduced a portion of claimant's medical record which contained the report to which defendant's counsel had objected. The Court accordingly overrules defendant's objection.
Claimant's Exhibit 14.
Defendant's Exhibit C at 49.
Claimant next testified that he remained in the top bunk of the double-bunk cell for 60 days, despite his letter to the Superintendent and subsequent fall. He contended that all of his injuries stemmed from his "illegal" transfer to Attica. He stated that he still has not seen a nephrologist, although he is still "eliminating blood." Claimant said he believed that the reason he was transferred was that he irritated someone by requesting certain programs.
On cross-examination, claimant asserted that he should not have been put in an upper bunk because of his scoliosis diagnosis. He cited a Medical Restriction Permit dated November 19, 2013 which indicated a diagnosis of scoliosis and gave him a permit for a medical back support. He stated that there was no ladder to enable him to reach the top bunk, so he instead had to climb on a foot locker. Claimant was shown a copy of his screening and physical assessment for placement in a double-cell. The medical records screening portion indicates that claimant did not have any currently contagious communicable illnesses, chronic debilitating disease, or any medical indications requiring him to be in a bottom bunk. The physical assessment indicated that there was no evidence that claimant was acutely ill or had any other medical indications (presumably including the kidney surgery) which would require a bottom bunk. Claimant simply denied that the screening and assessment were accurate.
Claimant's Exhibit 3 at 8.
Defendant's Exhibit C at 8.
When claimant was asked why there was no record of any fall in the block logbook entries or in claimant's Ambulatory Health Records around the date he stated the accident occurred, he responded "right, that's my point." Counsel for defendant inquired whether claimant had told anybody of the fall, and claimant stated that he had advised a CO, who told him to go to sick call. Claimant said the fall occurred on a Friday, and he went to sick call on a Monday. When asked again why there was no indication in claimant's medical records of any fall, he said "that's my whole argument - they did not tend to my needs."
Defendant's Exhibit B.
Defendant's Exhibit C.
Former CO Mootz was called to testify by claimant. Mootz had prepared a Scheduled Transfer Review Report on April 4, 2013 which indicated that claimant had stated that he did not need to transfer from Elmira at that time. Mootz said that the results of a transfer review would vary depending upon the security and programming issues for each inmate. He said that there is no mandatory call-out for a transfer review; that if an inmate did not show up for his interview two or three times he would try to track the inmate down if possible.
ORC Donley was called to testify by claimant. He stated that he has been a counselor for DOCCS for 18 years. He described Scheduled Transfer Review interviews as involving a meeting with the inmate every six months to review their desire to transfer to another facility, and check on program needs. He did not believe that it was mandatory for the inmate to attend these meetings at the time, but indicated that his recollection could be "fuzzy" as that was four years ago. He said that if the inmate did not show a number of times, it would be noted as a Code 98 (no-show) on the report.
Donley was shown the Transfer Review Report with an interview date of October 1, 2013 which stated that claimant said he wanted to be transferred out of Elmira. Although that report indicated that Donley was the assigned counselor, Donley stated that he was not working in the facility at the time, and accordingly he had not prepared the report. He was on medical leave, and a document verifying that fact was introduced into evidence. Donley said that his name was on the report because he was claimant's assigned counselor at the time, but that his back-up would have been the individual who prepared the report.
Claimant's Exhibit 6.
Defendant's Exhibit D.
With regard to the transfer process itself, Donley stated that requests for transfers would be considered every six months, rather than the inmate simply being able to request a transfer at any time. He said that claimant had apparently not been moved for security reasons, as that would have involved the preparation of a different form.
Claimant called Tricia Sweet to testify. She has been a DOCCS counselor at Elmira for approximately five years. She said that she had prepared the information which resulted in the Scheduled Transfer Review Report in question. She also acknowledged that her signature was on claimant's case plan prepared at the same time. She said she had no recollection of the specific circumstances leading to the preparation of either the case plan or the Scheduled Transfer Review report.
Claimant's Exhibit 4.
Claimant asked Sweet how it was possible that the computer records indicated that claimant had not appeared for the Scheduled Transfer Review interview, and yet the STR Report indicated that he had requested a transfer. Sweet was unable to answer the question.
Claimant's Exhibit 7.
On cross-examination, Sweet testified that she would have written the explanation for transfer that indicated that claimant was requesting a transfer. Again, she had no recollection of the incident.
Claimant rested his case at the close of Sweet's testimony. Defendant moved to dismiss the claim, noting that although the claim asserts a cause of action for lost wages, no evidence of any lost wages had been adduced. Defendant moved to dismiss any cause of action for medical malpractice or medical negligence, to the extent that any had actually been pleaded, pointing out that there was no expert testimony to establish malpractice or medical negligence, and further that no causal link had been established between any such malpractice/negligence and claimant's alleged injuries. Defendant moved to dismiss any cause of action regarding the allegedly "illegal" transfer, noting that the transfer could not be the proximate cause of claimant's fall, that there were no witnesses to the alleged fall, and that the medical records did not support the allegation. The Court reserved decision.
As defendant's counsel accurately stated, claimant did not present any evidence pertaining to lost wages. Accordingly, this cause of action is dismissed.
Claimant's primary contention is that he was "illegally" transferred without having requested it, and that the documentation supporting his purported transfer request was falsified. It is certainly questionable how claimant could have requested a transfer as indicated by the STR Report, when the computer documentation also indicates that claimant was a no-show for the STR interview. However, it is well-established that DOCCS "has broad discretion in deciding whether to transfer inmates from one correctional facility to another, and an inmate has no right to be housed at any particular facility" (Matter of Muggelberg v Annucci, 131 AD3d 1312, 1313 [3d Dept 2015]). To the extent that claimant has stated a cause of action regarding this issue, it is dismissed.
Claimant's contention that he should not have been placed in a double-bunk cell could potentially be a violation of DOCCS Directive 4003. Section 1701.5 of that Directive, which is entitled "Selection of Inmates for Double-Cell Housing," provides as is pertinent to claimant that
see Claimant's Exhibit 10 at 2.
[i]n determining which inmates shall be considered for assignment to double-cell housing, the facility shall first consider those inmates newly transferred into the facility; provided, however . . . a general population inmate transferred for non-disciplinary reasons may not be assigned to a double-cell housing in general confinement at the receiving facility, if the inmate meets all of the following criteria:
(i) the inmate has been with the department for at least two years following initial reception/classification and transfer to a permanent facility;
(ii) the inmate has had no Tier II or III disciplinary determinations of guilt within the last two years;
(iii) the inmate has not volunteered for double-cell housing (a transfer sought by an inmate may be conditioned upon the inmate volunteering to be housed in a double-cell at the receiving facility); and
(iv) the inmate is not being transferred to Woodbourne Correctional Facility.
However, not every violation of a directive or regulation provides a private right of action, particularly when there are other available remedies such as the inmate grievance process, and if claimant is unsatisfied, judicial review pursuant to CPLR Article 78 (see e.g. Matter of McKenna v Goord, 245 AD2d 1074 [4th Dept 1997], lv denied 91 NY2d 812 [1998]; Bennet v State of New York, UID No. 2006-013-003 [Ct Cl, Patti, J., Feb. 21, 2006]). Moreover, to the extent that claimant is arguing that he should not have been placed in a double-cell (regardless of whether it was a top or bottom bunk), this Court has no jurisdiction to review this type of administrative determination (see e.g. Blake v State of New York, 145 AD3d 1336 [3d Dept 2016]; Green v State of New York, 90 AD3d 1577 [4th Dept 2011], lv dismissed and denied 18 NY3d 901 [2012]).
To the extent that claimant is asserting that defendant was negligent in placing him in the top bunk of the double-cell, it is well-settled that the State owes "a duty to use reasonable care to protect its inmates from foreseeable risks of harm" (Reid v State of New York, 61 AD3d 1063, 1064 [3d Dept 2009] [internal quotation marks omitted]). However, the State is not an insurer of the safety of its inmates, and negligence cannot be inferred solely from the occurrence of an incident where an inmate is injured (see Killeen v State of New York, 66 NY2d 850 [1985]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). In order for a claimant to prove a cause of action for negligence, he or she must show that the harm suffered was a "reasonably foreseeable consequence of the State's acts or omissions" (see Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]).
In this case, claimant asserts that it was negligent to place him in the top bunk both because he was still recovering from the surgery which removed his left kidney and because he had a back condition, scoliosis. However, claimant has not provided any medical evidence that he was restricted from being placed in a top bunk or that he had any other physical ailment which would have required him to be placed in the bottom bunk. Notably, claimant's surgery took place approximately five months before he was placed in a top bunk. Moreover, as set forth previously herein, both a medical records screening review and a physical assessment were conducted and claimant was found to be suitable to be placed in a double-cell and not restricted to a bottom bunk. Claimant provided no medical evidence or expert testimony to prove he was not healed or medically fit for such placement. Claimant has not set forth a cause of action for negligence with regard to his placement in the top bunk.
Claimant also appears to be asserting a cause of action for medical malpractice and/or medical negligence based upon allegations that the medical staff did not appropriately treat his injuries when he allegedly fell while climbing up to the bunk, as well as his other medical conditions.
"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).
There is a subtle distinction between medical negligence and medical malpractice. The Court of Appeals has recognized that although a medical provider "in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice" (Bleiler v Bodnar, 65 NY2d 65, 73 [1985]. When the allegedly wrongful conduct "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician," the cause of action is for medical malpractice rather than negligence (id. at 72; see Scott v Uljanov, 74 NY2d 673 [1989]). "By contrast, when 'the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [provider's] failure in fulfilling a different duty,' the claim sounds in negligence" (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] quoting Bleiler, 65 NY2d at 73). However, "[u]nder either theory, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is . . . required' to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant's injuries " (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see also Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).
It is apparent that claimant received regular examinations, treatment and medications (not to mention surgery and a follow-up urology consultation) for his ongoing kidney problem. His Ambulatory Health Record indicates that lab work was performed regularly and repeatedly.
With regard to claimant's contention that defendant failed to treat him for injuries due to his alleged fall, it is notable that there is no indication in the logbook or in the medical records that claimant actually sustained injuries in a fall. In fact, claimant's AHR indicates that in a complaint regarding back pain on March 25, 2014, claimant denied having incurred that pain as a result of an injury. Moreover, based upon its observation of claimant's demeanor and attitude, the Court finds that claimant was not a credible witness. His contentions, both at trial and in his grievance, that he was not seen by a physician or have his complaints regarding blood in his urine addressed were belied by the documentary evidence that he was seen by medical staff and his urine was checked upon his complaint. Based upon the foregoing, the Court finds that claimant has not set forth a prima facie case of medical negligence.
Defendant's Exhibit C at 11.
id. at 12.
Id. at 19-20. --------
With regard to claimant's allegation of medical malpractice, whether claimant's overall treatment was medically appropriate is not within the knowledge of a layperson. Accordingly, the failure to offer an expert medical opinion is fatal to claimant's cause of action for medical malpractice.
In conclusion, claimant has not established a prima facie case for lost wages, an "illegal" transfer to another facility, inappropriate (negligent) placement on the top bunk in a double-bunk cell, or for medical malpractice/medical negligence. Defendant's motion to dismiss the claim is granted. Any motions not previously determined are denied.
Let judgment be entered accordingly.
May 4, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims