This is Bernard Patterson's motion for summary judgment on his claim, which is
for "wrongful excessive confinement." Specifically, Mr. Patterson alleges that
he was placed in keeplock status at Sullivan Correctional Facility on February
23, 2002, after which he was "given a disciplinary disposition of sixty days
keeplock." He contends that he should have thus been released on April 24,
2002, but that he was not in fact released until April 28, 2002. Accordingly,
he seeks $50 per day for the "extra added five days." Defendant has submitted
the affidavit of Kenneth Cosky, a senior counselor who was employed at Sullivan
during the times alleged in the claim. Mr. Cosky explains that upon the
occurrence of an incident on February 23, 2002, claimant was taken to the Mental
Hygiene Unit for "observation and special watch" until February 27, 2002, at
which time he was released to keeplock status; according to Cosky, "[a]lthough
the Mental Hygiene Unit is within the prison facility, the inmate is considered
a patient, not a prisoner during this time. Therefore, time spent in the Mental
Hygiene Unit does not count as time spent in ‘keeplock.'" He explains
that the sixty-day keeplock period imposed on claimant thus ran from February 27
through April 28, 2002. See exhibit B to the July 22, 2002 affirmation of
Joseph F. Romani (the "Romani aff."). Claimant argues that his time in the
Mental Health Unit should count as keeplock time. Neither party has elaborated
on what constitutes "keeplock" time nor have they submitted any relevant rules
or regulations. Accordingly, issues of fact remain which preclude the granting
of summary judgment. See CPLR 3212(b).
Claimant also contends in his motion papers that he should be entitled to
compensation for the entire period of his confinement since his disciplinary
disposition was ultimately reversed and expunged from his record. It should be
noted that he does not seek such relief in his claim. In any event, however,
"[c]orrections personnel are entitled to absolute immunity for those
‘discretionary decisions in furtherance of general policies and purposes
where the exercise of reasoned judgment can produce different acceptable
results.'" Minieri v State of New York, 204 AD2d 982, 613 NYS2d 510, 511
(4th Dept 1994), citing Arteaga v State of New York, 72 NY2d 212, 532
NYS2d 57 (1988). "Disciplinary proceedings in correctional facilities that are
conducted consistent with the applicable rules and regulations are covered with
a blanket of immunity . . . The fact that claimant was ultimately found not
guilty of the charge does not give rise to a viable claim." Brown v State of
New York, Ct Cl filed 10/27/98, Bell, J. (unreported, claim nos. 94875 and
94876). Accordingly, claimant is not entitled to summary judgment.
Finally, claimant raises for the first time, in his motion papers, that: (1)
his disciplinary hearing was commenced the same day he met with his assistant,
in violation of 7 NYCRR §254.6; and (2) that his hearing was not timely
commenced or completed.
With regard to an assistant, 7 NYCRR §254.6 provides that if the inmate
requests an assistant, "the hearing may not start until 24 hours after the
assistant's initial meeting with the inmate." Claimant contends that he met
with his assistant on March 5, 2002 and that his hearing was commenced the same
day. However, a Sullivan Correctional Facility Assistant Form indicates that
claimant first met his assistant on March 4, 2002 at 2:20 p.m. and that the
assistance was concluded on March 5, 2002 at 10:25
See exhibit C to the Romani aff.
According to claimant, the hearing commenced on March 5, 2002 at 2:25 p.m. As
this is more than 24 hours after he first met his counselor, it was timely
pursuant to 7 NYCRR §254.6.
With regard to the timeliness of the hearing, 7 NYCRR §251-5.1(a) provides
that the hearing "must be commenced as soon as is reasonably practicable
following the inmate's initial confinement pending said . . . hearing . . . but,
in no event may it be commenced beyond seven days of said confinement without
authorization of the commissioner or his designee." 7 NYCRR §251-5.1(b)
provides that the hearing "must be completed within 14 days following the
writing of the misbehavior report unless otherwise authorized by the
commissioner or his designee. Where a delay is authorized, the record of the
hearing should reflect the reasons for any delay or adjournment, and an inmate
should ordinarily be made aware of these reasons unless to do so would
jeopardize institutional safety or correctional goals."
Whether the hearing, which commenced on March 5, 2002, was commenced within
seven days, depends on whether claimant's keeplock status is found to have
started on February 23 or February 27. Since, as set forth above, this issue
may not be resolved upon the parties' submissions on this motion, a
determination as to the timeliness of the March 5, 2002 hearing commencement may
not be made at this time either.
As to the conclusion of the hearing, it is agreed that such was beyond 14 days
after claimant's misbehavior report was written, however, defendant asserts that
it was not completed until March 20, 2002 "due to unavoidable delays in
producing witnesses to testify," which delays were authorized. Specifically,
defendant asserts that "[w]ith the approval of Superintendent Walsh, and
pursuant to Title 7 NYCRR § 254.1, the hearing was extended because inmate
Patterson was confined to the Office of Mental Hygiene, the hearing officer was
on vacation, and the non-availability of witnesses." See ¶4 of the July
17, 2002 affidavit of Kenneth Cosky, annexed as exhibit B to the Romani aff.
See also exhibit D to the Romani aff., a computer printout indicating that
defendant sought an extension of time for Patterson's hearing. Neither party
has provided a copy of the hearing record. The Court is thus unable to
determine whether it reflects approval by the Superintendent or contains a
statement of the reasons for delay, as is required by 7 NYCRR §254.1.
Accordingly, having reviewed the parties'
, IT IS ORDERED that motion no.
M-65430 be denied.