New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2003-032-119, Claim No. 105681, Motion Nos. M-66664, M-67186, CM-66776


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):
M-66664, M-67186, CM-66776
Cross-motion number(s):

Claimant's attorney:
Dontie S. Mitchell, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney GeneralBy: Kathleen M. Resnick, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 17, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


In connection with Claim No. 105681, which was filed in March 2002, claimant moved for an order compelling defendant to submit a response to certain written interrogatories (Motion No. M-66664). In response, counsel for defendant has cross-moved for an order dismissing the claim on the ground that it was not properly verified, as is required by section 11(b) of the Court of Claims Act (Cross Motion No. CM- 66776). Implicitly acknowledging this jurisdictional defect in the original claim, claimant has moved pursuant to Court of Claims Act §10(6) for permission to file an untimely claim (Motion No. M-67186). A review of the claim in Claim No. 105681 reveals that it lacks any form of verification, and thus is jurisdictionally defective (Price v State of New York, 2003 WL 21669922 [Ct Cl 2003]). Consequently, claimant's first motion is denied as moot, and defendant's cross motion is granted.

With respect to claimant's motion for permission to late file, the proposed claim (captioned "Successive Claim)
alleges that he was wrongfully confined to the Special Housing Unit (SHU) at Upstate Correctional Facility for 182 days from July 12, 2001 to January 11, 2002.[1] Prior to his transfer, claimant had been placed on keeplock status at Sing Sing Correctional Facility. When he was transferred to Upstate on July 12, 2001, he was placed in SHU and remained there until his January 11, 2002 transfer from that facility. Upstate Correctional Facility is an SHU designated facility.
Claimant states that he was placed in SHU at Upstate Correctional Facility pursuant to section 301.6 of the Uniform Rules for the Department of Correctional Services (7 NYCRR §301.6), and he contends that this confinement was illegal, unconstitutional and not privileged. Section 301.6 of the DOCS rules and regulations sets forth the rules for "keeplock admissions" to SHU units and provides, in relevant part, as follows:
(a) An inmate in a medium or minimum security correctional facility or Upstate Correctional Facility may be housed in a special housing unit for reasons such as, but not limited to, the following: (1) awaiting disposition of a disciplinary (Tier II) or superintendent's (Tier III) hearing; (2) for confinement pursuant to a disposition of a disciplinary (Tier II) or superintendent's (Tier III) hearing; or (3) awaiting transfer to another facility.
Claimant interprets this regulation to apply only to inmates at Upstate Correctional Facility or at a medium or minimum security facility at the time they were charged or sentenced because of a Tier II or Tier III disciplinary infraction. The regulation could not, therefore, authorize his assignment to SHU at Upstate because at the time he was sentenced to keeplock he was housed at Sing Sing Correctional Facility, a maximum security facility. It is claimant's contention, therefore, that this regulation applies only to prisoners who are in medium and minimum security facilities (which, by and large, do not have their own SHU areas and may transfer inmates to Upstate to serve out a sentence confining them to SHU) or to inmates who are at Upstate as "cadre prisoners" (i.e., for "maintenance and service purposes") and ordinarily neither on keeplock or SHU status, when they are subject of a Tier II or Tier III disciplinary proceeding (proposed claim, ¶13).
This motion was brought less than three years after the proposed claim arose, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214).[2] In determining a motion for permission to file a late claim, the Court must consider, among
other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 1) whether the delay in filing the claim was excusable; 2) whether the State had notice of the essential facts constituting the claim; 3) whether the State had an opportunity to investigate the circumstances underlying the claim; 4) whether the claim appears to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and 6) whether the claimant has another available remedy. The Court in the exercise of its discretion balances these factors; the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Claimant does not set forth an acceptable excuse for his failure to comply with the applicable time limitation of the Court of Claims Act, but his timely filed unverified claim, Claim No. 105681, provided the State with the required notice and gave ample opportunity for investigation of the underlying facts giving rise to the claim. Consequently, the State would not be prejudiced if the requested relief is granted. Furthermore, claimant does not have an available remedy against any party other than the State.
In the Court's view, Claimant has succeeded in establishing that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). There is no dispute that DOCS has virtually unlimited discretionary authority to transfer inmates within its prison system (Matter of Richards v Czarnetzky, 68 AD2d 984, lv denied 47 NY2d 707 [3d Dept 1979]). Claimant's proposed claim, however, is one of several challenges to what was apparently a 2000 amendment to 7 NYCRR §301.6, which for the first time included Upstate Correctional Facility along with minimum and medium security facilities as locations at which keeplock admission to SHU is authorized. In Shanholtzer v Selsky (291 AD2d 588 [ 3d Dept 2002]), an inmate who was placed in keeplock at Green Haven Correctional Facility and then transferred to SHU at Upstate sought to challenge, by way of an Article 78 proceeding, that more-restrictive confinement. The reasoning behind that challenge was essentially the same as set forth by claimant.
Petitioner concedes that the Department of Correctional Services has the authority to transfer him from one facility to another and that, pursuant to 7 NYCRR 301.6(a), an inmate housed at Upstate may be placed in the SHU for confinement pursuant to a tier II or tier III disciplinary determination. According to petitioner, however, he could not be transferred from another facility to serve his previously imposed keeplock penalty in Upstate's SHU because he was thereby subjected to a harsher penalty than that imposed as a result of the disciplinary proceedings.
(id, at 589.) By the time that inmate's petition was heard, he had already been released from SHU. Release from such confinement was, according to Supreme Court, the only relief to which he would have been entitled. When the matter was appealed to the Third Department, the appellate court concurred: "Regardless of the merits of petitioner's claim, we agree with Supreme Court that release from SHU, which has already occurred, is the only relief to which petitioner could be entitled in this proceeding" (id). In the Court of Claims, however, a claimant may recover money damages for proven wrongful confinement.
Claimant presents his argument in the following fashion:
DOCS had me placed into SHU pursuant to 7 NYCRR §301.6, which authorizes the admission into SHU of prisoners placed on keeplock at Upstate or at any medium or minimum security facility. I was neither at Upstate nor at any medium or minimum security facility when I was initially placed on keeplock. Despite the fact that I could have remained at Sing Sing or been transferred to several other maximum security facilities where I could have served the time on keeplock rendered against me without further restriction, DOCS instead transferred me to Upstate, where, due to its designation and configuration, I was subjected to SHU restrictions pursuant to 7 NYCRR §302.2.[3]
Prior to the 2000 amendment to section 301.6, according to claimant, prisoners who were placed on keeplock status in a maximum security facility, such as Sing Sing or Green Haven, would serve their disciplinary sentences in keeplock, which encompasses fewer restrictions than SHU. The current regulation as construed by claimant does not authorize moving these inmates to Upstate so that they are then required to serve their sentences in SHU. While it may turn out that claimant's interpretation is incorrect, the question raised is a valid one and thus the proposed claim is not patently groundless, frivolous, or legally defective.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting claimant's motion for permission to file a late claim. Claimant is therefore directed to file and serve a claim identical to the proposed claim submitted in support of this motion (except that the date of his release from SHU is to be corrected) and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within sixty (60) days after this order is filed.

December 17, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for an order to compel (Motion No. M-66664, defendant's cross-motion for an order of dismissal (Cross Motion No. CM-66776), and claimant's motion for permission to file an untimely claim (Motion No. M-67186).[4]
1. Notice of Motion (Motion No. M-66664) and Supporting Affidavid of Dontie S. Mitchell, pro se, with annexed Exhibits
2. Notice of Cross-Motion and Supporting Affirmation of Kathleen M. Resnick, Esq., AAG, with annexed Exhibits

3. Affidavit in Opposition to Cross-Motion of Dontie S. Mitchell, pro se

4. Notice of Motion (Motion No. M-67186) and Supporting Affidavit of Dontie S. Mitchell, pro se, with annexed Exhibits

5. Affidavit in Opposition of Kathleen M. Resnick, Esq., AAG

6. Responding Affidavit of Dontie S. Mitchell, pro se

Filed papers: Claim; Answer

[1] In his pleadings, claimant consistently refers to his release date as January 11, 2001, apparently a repeated typographical error. The correct date, as indicated in the interrogatories served on defendant, is January 11, 2002.
[2] Although wrongful confinement claims are considered a "species" of actions for false imprisonment, they are not based on intentional tortious behavior, but rather, on negligence and consequently the applicable statute of limitations is the three year period set forth in CPLR 214 (Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997]; accord Augat v State of New York, 244 AD2d 835 [3d Dept 1997])
[3] 7 NYCRR §301.6 (c)-(h) provide that inmates placed in keeplock under its authority are subjected to the restrictions contained in section 302.2, restrictions that are greater than those placed on inmates who are assigned to keeplock (see, Applegate v State of New York, #2002-011-109, Claim No. 103537, July 8, 2002, McNamara, J.).
[4] Claimant also submitted a document captioned "Notice of Motion" and seeking an extension of time in which to respond to defendant's motion to dismiss. This request was granted without the necessity of motion practice.