Claimant has moved, and defendant has cross-moved for summary judgment in this
claimalleging wrongful confinement.
The proponent of a motion for summary judgment must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact (Winegrad v New York
Univ. Med. Center, 64 NY2d 851, 853). Once this showing has been made the
burden shifts to the party opposing the motion to produce evidentiary proof in
admissible form sufficient to establish the existence of material issues of fact
which require a trial (Alvarez v Prospect Hospital , 68 NY2d 320).
To establish this cause of action for wrongful confinement Claimant must show
that: (1) the defendant intended to confine him (2) that he was conscious of the
confinement, (3) he did not consent to the confinement and (4) the confinement
was not otherwise privileged (Broughton v State of New York, 37 NY2d
451). Here, the only issues disputed by the parties is whether Claimant
consented to the confinement or the confinement was privileged.
The regulations promulgated by the Department of Correctional Services set
forth the circumstances under which an inmate may be confined to his cell. An
inmate may be confined to his cell where an officer has reasonable grounds to
believe he represents an immediate threat to the safety, security or order of
the facility or is an immediate danger to other persons or to property (7 NYCRR
§251-1.6[a]). An inmate also may be confined to his cell or room where
such action appears reasonably necessary for protection of the inmate. In any
such case, however, the inmate shall not be so confined for more than 72 hours,
and within such time period the inmate either be transferred to another housing
unit, scheduled for transfer to another facility, released from such confinement
placed in protective custody (7NYCRR §251-1.6[b]). Inmates may also be
placed in either voluntary or involuntary protective custody (7 NYCRR
§330.2). Where an inmate is placed in involuntary protective custody a
hearing must be conducted within 14 days to determine the need for protective
custody admission (7 NYCRR §330.3[b]). Detention admissions are also
authorized where an inmate is received from another correctional facility and
his record in the other facility raises a reasonable question as to whether he
presently is ready to adhere to the department's rules and policies governing
inmate behavior or in cases where an inmate is awaiting transfer from Southport
Correctional Facility or a double-celled SHU (7 NYCRR 301.3[a]).
In his affidavit in support of the motion Claimant maintains that on February
24, 1998 he was told by a correction officer that he was being placed on
investigation status. According to Claimant he was then confined to his cell
until April 30, 1998 when a request for involuntary protective custody was
prepared by J. Mulholland, a counselor, and approved by the facility
superintendent. On June 26, 1998 Claimant was transferred to Wende Correctional
Facility and placed in general population. Claimant maintains that he was held
in his cell for a total of 122 days without having been given a hearing.
Given that Claimant was not released within seventy-two hours, was not provided
a hearing of any kind and was not transferred from another facility or awaiting
transfer from Southport or a double celled SHU, his confinement to his cell from
February 24, 1998 to April 30, 1998, was not authorized by the regulations.
Accordingly, Claimant has established a prima facie case of wrongful confinement
for the period from February 24, 1998 to April 30, 1998.
Because he was not provided a hearing within fourteen days, his confinement
from April 30, 1998 until June 26, 1998 was not authorized under the regulations
governing involuntary protective custody. However, Claimant has attached to his
affidavit in support of the motion a copy of the form prepared by Mr. Mulholland
requesting protective custody. The form is a request for voluntary protective
custody. Though Claimant maintains that he did not request protective custody
and points out that he did not sign the form on the line provided for the
inmate's signature, there is no requirement in the regulations that a request
for voluntary protective custody be in writing and signed by the inmate.
Consequently, a question of fact is raised as to whether Claimant's cell
confinement from April 30, 1998 to June 26, 1998 was at his request.
The only submission by Defendant in opposition to the motion and in support of
the cross-motion is an affirmation by its attorney. The affirmation is not
based upon personal knowledge and therefore, is not sufficient to establish the
existence of material issues of fact or to make a prima facie showing of
entitlement to judgment as a matter of law.
The motion for summary judgment is granted on the issue of liability with
respect to the period of confinement from February 24, 1998 to April 30, 1998
and is, in all other respects, denied. The cross-motion is denied.