New York State Court of Claims

New York State Court of Claims

DiROSE v. THE STATE OF NEW YORK, #2002-029-217, Claim No. 104230


Partial summary judgment previously awarded. Claim for wrongful confinement. Court finds confinement of 212 days was wrongful, awards $10.00 per day.

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:
Ricardo A. DiRose, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Saul A. Aronson, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

By decision and order filed October 2, 2001, this Court granted in part, claimant's motion for summary judgment finding that claimant was wrongfully confined in the Special Housing Unit (hereinafter SHU) at Shawangunk Correctional Facility (hereinafter Shawangunk). The Court specifically found that questions of fact existed as to when claimant's wrongful confinement began and the extent of claimant's damages. The trial as to these remaining two issues was held by video conference on July 19, 2002.

This claim arises from claimant's confinement in SHU for over two years between August 22, 1996 through March 29, 1999 at
Shawangunk.[1] Claimant was originally handcuffed and escorted to SHU, without explanation, on August 22, 1996. Thereafter, on October 29, 1996, an "Administrative Segregation Recommendation" was issued finding claimant to be a threat to facility security (see Exh. 8) which, according to claimant, was a belated attempt to justify his confinement. Claimant, however, did not receive a misbehavior report (hereinafter "report") until June 3, 1998 (see Exh. 10). Claimant was found guilty of violating numerous facility rules and regulations. Claimant filed two administrative appeals objecting to the report and the guilty finding on numerous grounds including, but not limited to, the fact that the report was issued two years after the alleged incident. Claimant's sentence of an additional 12 months of SHU confinement was reduced to nine months, together with a loss of privileges, after the second appeal. Claimant also filed an Article 78 proceeding culminating in a Memorandum of Judgment in which the Third Department found, inter alia, "[m]erit to petitioner's contention that his due process rights were violated because the misbehavior report was not prepared until nearly two years following the charged conduct" (Matter of DiRose v New York State Dept. of Correctional Servs., 276 AD2d 842, 843).
The Appellate Division in
DiRose, (supra) stated:

"Our review of the record reveals that the investigation of the conduct forming the basis for the misbehavior report concluded no later than February 1997. Contrary to the testimony of the principal investigator that the investigation culminated upon petitioner's conviction in Federal court in May 1998, the record fails to detail any substantive investigative steps taken following the confiscation of material from petitioner's cell in February 1997. Likewise, the record does not contain any factual support for the administrative decision to postpone any disciplinary action until after the Federal investigation and prosecution of petitioner were completed. Although due process is not violated by delay in the absence of prejudice (see,
People ex rel. Friedrich v Smith, 106 AD2d 911), petitioner claimed prejudice as the result of the unavailability of various witnesses through death and release on parole. In view of these circumstances, we agree with petitioner's contention that the misbehavior report was not issued as soon as practicable as required by the regulation and that such delay violated his due process rights."

Claimant argues that his wrongful confinement began on August 22, 1996, the date he was confined to SHU. He asserts that the facility superintendent placed him in SHU on August 22, 1996 without the approval of the Deputy Commissioner of Facility Operations as required by 7 NYCRR § 301.7. By letter dated August 23, 1996, the Shawangunk superintendent wrote to Deputy Commissioner Bartlett informing Mr. Bartlett that based upon an on-going investigation claimant was considered a threat to the safety, security and good order of the facility and requested his admission to SHU pursuant to 7 NYCRR § 301.7 (Exh. 1). Claimant did not present any evidence to establish that Deputy Commissioner Bartlett denied the request to place claimant in SHU pursuant to 7 NYCRR § 301.7. In fact, the Appellate Division in
DiRose (supra) specifically stated that claimant "was placed in the special housing unit under 7 NYCRR 301.7" (276 AD2d 842). The Appellate Division found that 7 NYCRR § 251-3.1(a) was violated by the defendant because the written report with respect to misbehavior involving danger to life, health, security or property was not made as soon as practicable following conclusion of the investigation which was "no later than February 1997" (id at 843). Claimant has offered no proof to establish that his wrongful confinement began earlier than February 1997. The State, however, asserts that the date of the wrongful confinement did not begin in February 1997. The State called Donald Selsky as a witness at trial. Mr. Selsky is the Director of Special Housing and Inmate Discipline for the Department of Correctional Services (hereinafter DOCS) and has held this position since January 1998 and has been employed by DOCS since 1978. Mr. Selsky stated that claimant was placed in Administrative Segregation by Recommendation on October 29, 1996 (see Exhs. 8 and 13); that an Administrative Segregation hearing was held and the hearing officer determined that claimant was a threat to the safety and security of the facility and as a result should not be in the general prison population. The evidence established that the hearing was held on November 13, 1996 by Hearing Officer Pico (see Exh. 13). Claimant brought an Article 78 proceeding to review the State's determination which continued his placement in administrative segregation. The Appellate Division Third Department confirmed the hearing officer's determination (see, Matter of DiRose v Pico, 247 AD2d 687). Claimant was released from Administrative Segregation on July 7, 1998 (see Exh. 13).
Claimant bears the burden of proving when his wrongful confinement began. Claimant failed to establish by a preponderance of the credible evidence that his confinement to SHU on August 22, 1996, pursuant to 7 NYCRR § 301.7, was for the same alleged misconduct for which he was placed in Administrative Segregation on October 29, 1996. Stated another way, claimant failed to establish that the investigation being conducted by the State which resulted in his placement in SHU pursuant to 7 NYCRR § 301.7 and his placement in Administrative Segregation arose out of the same alleged misconduct. Therefore, even though the Appellate Division in the Article 78 proceeding (see,
Matter of DiRose v Pico, 247 AD2d 687, supra) stated claimant's due process rights were violated by the delay between the end of the investigation in February 1997 and the issuance of the misbehavior report in June 1998, it appears that claimant was properly placed in Administrative Segregation until July 7, 1998. A hearing was held, which was affirmed on administrative appeal and then confirmed by the Appellate Division in the Article 78 proceeding (Matter of DiRose v Pico, 247 AD2d 687, supra). Therefore, the Court finds that claimant's wrongful confinement began on July 8, 1998. Claimant conceded that based upon a January 22, 1999 incident, disciplinary proceedings unrelated to this matter took place in February and March 1999. Claimant's Inmate Disciplinary History (Exh. 13) established that as a result of an incident on January 22, 1999, a Tier III Disciplinary Hearing was held on February 5, 1999 and claimant was confined to keeplock from February 5, 1999 to April 8, 1999. While the incident occurred on January 22, 1999, the evidence established that the new keeplock confinement began on February 5, 1999. Therefore, the Court finds that claimant has established that the wrongful confinement to SHU ended on February 4, 1999. The Court finds that claimant's wrongful confinement lasted from July 8, 1998 to February 4, 1999 inclusive.
Turning to claimant's damages, the Court finds, based upon a preponderance of the credible evidence, including claimant's inmate work records, that claimant is entitled to an award of $10 per day for each day he was wrongfully confined to SHU. This amount includes an amount for lost back pay. Claimant is, therefore, awarded $10 per day for 212 days (July 8, 1998 through February 4, 1999 inclusive) for a total of $2,120. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). The Chief Clerk is directed to enter judgment accordingly.

September 30, 2002
White Plains, New York

Judge of the Court of Claims

[1] Although not mentioned in the claim, it appears from later Court decisions that claimant was charged with violating several prison disciplinary rules due to his alleged participation in a fraudulent check-cashing scheme from June 1996 through August 1996 (Matter of DiRose v New York State Dept. of Correctional Servs., 276 AD2d 842).