New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2002-019-033, Claim No. 98898


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):

Claimant's attorney:
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
September 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Jamel Brown, a
pro se 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 Correctional Facility.

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 [
sic] 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 New York, 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).[1]
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 designee.[2] (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 $100.00.

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.


September 30, 2002
Binghamton, New York

Judge of the Court of Claims

[1]7 NYCRR 251-3.1 (b) states: "[t]he misbehavior report shall be made by the employee who has observed the incident or who has ascertained the facts of the incident. Where more than one employee has personal knowledge of the facts, each employee shall make a separate report or, where appropriate, each employee shall endorse his/her name on a report made by one of the employees."
[2]In calculating the statutory time period, the date the misbehavior report is written is excluded. (Matter of Faison v Senkowski, 256 AD2d 702, appeal dismissed 93 NY2d 870).