Claimant, Jamel Brown, a
inmate, alleges that he was wrongfully confined at the Southport
Correctional Facility (hereinafter "Facility"), from June 29, 1998 to July 8,
1998, while in the custody of the Department of Correctional Services
(hereinafter "DOCS"). This Claim was tried on June 25, 2002 at the Elmira
At trial Claimant testified that on June 29, 1998 he was wrongfully accused by
Nurse Diane Brusso and other correction officers of verbally harassing and using
obscene language toward Nurse Brusso while on her evening medication rounds.
Claimant was located in Cell B-01-18 and alleges that after the incident he was
confronted by approximately five correction officers who shackled and handcuffed
him and dragged him approximately 200 yards to a glassed-in cell designated Cell
A-1-18. There Claimant alleges he remained and was denied all privileges at the
Facility until July 8, 1998, some ten days later. Attached to the Claim and
reviewed by the Court was a review of the findings of the Tier 3 Disciplinary
Hearing at which it was determined that the underlying Inmate Misbehavior Report
upon which the Claimant was transferred to restricted housing was dismissed due
to the "signature of D. Brusso was not her's [
] by her own testimony". (Attachment to Claim). The hearing was held
on July 8, 1998 and consequently all violations alleged by Misbehavior Report
dated June 29, 1998 were dismissed. At that hearing, Nurse Brusso indicated
that she did not hear or view the allegations contained in the June 29th report
and did not sign the same. Consequently, Claimant was released from special
housing on July 8, 1998.
At trial the State called Nurse Diane Brusso who confirmed that she had no
recollection of signing the Misbehavior Report dated June 29, 1998 (St. Ex. B).
However, Nurse Brusso did acknowledge signing an Inmate Misbehavior Report dated
June 14, 1998 (St. Ex. A), which the Court finds is not relevant to the
proceeding at hand. Nurse Brusso, to her credit, was reluctant to acknowledge
the contents of the June 29
th report. She testified that she had no recollection of the same, and clearly
has no recollection of signing that report.
The State also called Correction Officer Root, who did nothing to further
clarify the situation. While Correction Officer Root claimed that the June 29,
1998 incident in fact did happen and that Nurse Brusso was present, the Court
finds Nurse Brusso more credible and reliable on this issue. Consequently,
there is a serious question in the Court's mind as to what, if anything,
happened on June 29, 1998. Moreover, Correction Officer Root testified at trial
that Claimant was not removed from his cell on the evening of June 29, 1998, but
rather was removed at some later date. He opined that Claimant may have been
removed to special housing for the June 14, 1998 incident (St. Ex. A), and not
the allegations contained in the June 29
th report. (St.Ex. B). However, a review of the Misbehavior Report dated June
29, 1998 (St. Ex. B), indicates as a response to question number eight, that the
inmate was moved to another housing unit, specifically A-1-18, on the day of the
incident at approximately 7:30 p.m. As such, it appears to the Court that
Claimant's version of events here is more precise, and accurate, than the more
cloudy and confused version presented by the State.
Although the Claimant has an extensive disciplinary history while in the
custody of DOCS, it does appear that he was found not guilty for the violations
alleged to have occurred on June 29, 1998 and for which he was confined in Cell
A-1-18 for a total of ten days.
In order to establish a prima facie claim for wrongful confinement, a claimant
must demonstrate that (1) defendant intended to confine him; (2) 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, 456, cert denied sub nom
Schanbarger v Kellogg
, 423 US 929). Generally, disciplinary measures
imposed consistent with the governing rules and regulations are covered by
immunity, except in cases in which the State exceeded the scope of their
authority or violated applicable rules and regulations. (Arteaga v State of
, 72 NY2d 212, 218-220).
Based upon the evidence presented at trial, this Court finds that the
correction officers took disciplinary measures outside the scope of their
discretionary authority. (7 NYCRR part 251). More specifically, the Court
finds two separate violations. First, Nurse Brusso testified that she did not
witness any June 29, 1998 incident nor sign the related misbehavior report. As
such, the only conclusion is that said misbehavior report was prepared in
violation of 7 NYCRR 251-3.1 (b).
Moreover, it is well-settled that when an inmate is confined pending a
disciplinary hearing that the hearing must be commenced within 7 days of
confinement and completed within 14 days of confinement unless an extension is
obtained from the Commissioner or his
(7 NYCRR 251-5.1 [a]). There was
no proof that any extensions were requested in this case. Furthermore, because
there is no evidence to support the conclusion that even the initial 7-day
period was privileged, the Court finds Claimant is entitled to recover for the
entire 10-day period. (Rosado v State of New York
, Ct Cl, April 15,
2002, Scuccimarra, J., Claim No. 101794).
Based upon these facts, it appears to the Court that Claimant was in fact
wrongfully confined for a period of ten days with a total loss of privileges.
As such, the Court awards to the Claimant the sum of $10.00 for each day he was
so wrongfully confined for a total award to Claimant in the amount of
Any allegations contained in Claimant's pleadings of physical injury caused by
the June 29
th incident, as well as denial of medical treatment relative to same, are hereby
dismissed due to the Claimant's failure to offer any proof at trial to support
those causes of action.
Any and all motions on which the Court may have previously reserved or which
were not previously determined, are hereby denied.
ENTER JUDGMENT ACCORDINGLY.