New York State Court of Claims

New York State Court of Claims

BANKS v. THE STATE OF NEW YORK, #2000-005-010, Claim No. 93791


The claim for deprivation of exercise privilege while in keeplock is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
Jack Weiner, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 31, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


In 1991 Claimant was sentenced by the Ulster County Court to a term of 2 - 4 years to the custody of the New York State Department of Correctional Services (hereinafter DOCS). He was released in 1994 after serving his minimum sentence. Thereafter, he was returned to DOCS for a period of eighteen months after a finding that he had violated the terms of his parole.

Claimant alleges in his claim that "
During the period 1992 - 1995 at the Orleans Correctional Facility, claimant was kept in restrictive confinement and denied any time for exercising, in direct violation of applicable laws and regulations," and seeks damages of One Hundred Thousand Dollars ($100,000) for pain and suffering and punitive damages. It is not contested that punitive damages are not permitted against the State of New York (Sharapata v Town of Islip 56 NY2d 332), and thus to the extent that the claim herein seeks such damages, it is dismissed.
After earlier motion practice regarding this claim[1]
, I limited the claim to the alleged denial of exercise privileges at the Orleans Correctional Facility (Orleans) to the period from November 1, 1995, to December 15, 1995, a period of 45 days. While there was testimony at trial alleging other purported deprivations, i.e., for showers and meals other than in his cell, the claim herein was already limited to the alleged limitations of Claimant's exercise privileges.
In support of his claim, Claimant testified that he was placed in keeplock in a cube (cell) at Orleans and was
never granted recreation while so confined, even though he had requested it. Keeplock is a form of punishment and a level of confinement which results from a hearing and an adverse finding that an inmate violated administrative rules of the correctional facility, and at Orleans it is the direction that an inmate must remain within his assigned cube unless he is granted permission to leave. Consequently Claimant would have to request specific permission from a correction officer to visit the bathroom, take a shower, engage in recreation, etc.
Orleans is a medium security correctional facility which does not contain the normal cell construction with barred doors, etc., but rather is an open dormitory setting with a cube configuration.  In this setting, each cube is separated from the others by a four-foot high partition, and is without any internal floor-to-ceiling doors or walls. A keeplocked inmate, such as Claimant, would have meals in his cube or the mess hall and he must obtain permission from a correction officer to leave his cube for any reason.

Defendant produced as a witness Bruce Flagler, a DOCS Captain, who was present as a sergeant in the Claimant's dormitory at Orleans in 1995. The "Cube Keeplock – Chronological Sheet" containing the Claimant's daily activities during the period from November 1, 1995 to December 15,1995, the subject period during which Claimant alleges the deprivation of recreational activities, was admitted into evidence as Exhibit A. Captain Flagler described the typical procedures that the keeplock correction officers would perform, among them being the daily inquiry whether a keeplocked inmate wanted to take meals in the mess hall and/or wanted recreation. He reviewed Exhibit A and noted that the Claimant
never engaged in recreation, and furthermore that such a continuing refusal was not unusual. Moreover, Exhibit A reveals notations 43 of the 45 days in question, to wit, from November 1, 1995 to and including December 15, 1995, at or about 7:00 a.m., that Claimant "Refused Rec," except for the first day and the last day of his placement thereat. It appears that Claimant did not arrive until 1:15 p.m. on the first day. The only other day in question that does not contain any notation whatsoever with respect to recreation is December 15, 1995, the day on which Claimant was transferred from the unit, and Exhibit A reflects that at 2:00 p.m., Claimant was "off unit for draft."
I have carefully considered the testimony of the witnesses and reviewed Exhibit A in detail and I do not credit the testimony of the Claimant regarding his allegations of being refused recreational opportunities. Indeed to the contrary, I fully credit the testimony of Captain Bruce Flagler, and find that as supported by the "Cube Keeplock – Chronological Sheet" (Exhibit A), Claimant refused recreation himself.

Thus, while Claimant's counsel has diligently pursued this claim on behalf of the Claimant, I am constrained to find that he has not sustained his burden of proving his claim by a preponderance of the credible evidence. Accordingly, the claim is dismissed.

All motions not heretofore ruled upon are now denied. Let judgment be entered accordingly.

October 31, 2000
Rochester, New York

Judge of the Court of Claims

[1]See Order filed May 5, 1999, in Motion Nos. M-58395 and CM-58515.