New York State Court of Claims

New York State Court of Claims

DUBOIS v. THE STATE OF NEW YORK, #2003-032-524, Claim No. 105607


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:
Donald Dubois, pro se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Belinda A. Wagner, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 30, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Donald Du Bois, appearing
pro se, alleges that he was wrongfully confined by defendant State of New York for a period of at least 90 days based upon a tier III determination that was later administratively reversed. At trial,[1] mirroring the allegations stated in the claim, claimant explained that he was charged with, and found guilty of, various disciplinary violations because he was not given sufficient support by his inmate assistant (see 7 NYCRR 251-4.1, 251-4.2). He was thereafter convicted and given a sentence of six months in the Special Housing Unit (SHU). His sentence was served initially at Clinton Correctional Facility and, later at Southport Correctional Facility.
As evidenced by the documents annexed to his claim, claimant's six-month sentence commenced on August 21, 2001 and was to end on February 21, 2002. The tier III disposition was reversed, however, on October 18, 2001 due the failure of DOCS to resolve the issues he had raised concerning his assistance (
see, letter of Donald Selsky, Director of Special Housing/Inmate Disciplinary Programs [annexed to claim]). Despite this reversal, claimant was not transferred out of Southport Correctional Facility to the general prison population at Wende Correctional Facility until November 6, 2001.
Generally, "the actions of Correction Department employees in preparing and filing misbehavior reports, confining inmates, and making dispositions following Superintendents' hearings entail discretionary decisions in furtherance of general policies and purposes where the exercise of reasoned judgment can produce different acceptable results. . ." (
Arteaga v State of New York, 72 NY2d 212, 219 [citation omitted]). Therefore, when employees of a State correctional facility "act under the authority of and in full compliance with the governing statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR parts 250-254) [in maintaining prison discipline], their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity. . ." (Arteaga v State of New York, supra, at 214 [citation omitted]; see Davis v State of New York, 262 AD2d 887, lv denied 93 NY2d 819).
The fact that the underlying charges were ultimately dismissed and claimant's record expunged does not weaken this immunity absent a showing, which is not present in this case, that DOCS personnel "exceed[ed] the scope of their authority or violate[d] applicable rules and regulations"
(Davis v State of New York, supra, at 888). Although claimant vaguely averred that he was not given proper assistance when preparing for his tier III hearing (see e.g. Claim, ¶¶ 4-7), he did not allege that he was outright denied assistance, only that he was essentially dissatisfied with the assistance provided to him. Thus, he did not establish any clear violation of a governing regulation that would vitiate DOCS' absolute immunity for his pre-reversal confinement. Consequently, there can be no recovery for the period of time before October 18, 2001, the date his conviction was administratively reversed.
What remains to be considered is the period of time after the October 18, 2001 reversal until November 6, 2001 when he was transferred to Wende Correctional Facility, where he was placed in the general population. At trial, claimant acknowledged on cross-examination that he was already serving thirty days of keeplock time for an unrelated violation when he was charged with the offenses underlying his six-month SHU sentence. Claimant had been serving this keeplock time from August 5, 2001 until August 21, 2001 when he began his SHU time. Accordingly, he had only served sixteen days of the thirty when he commenced his SHU time, leaving 14 days of his original keeplock penalty still remaining.

Although claimant would not acknowledge that he had fourteen days remaining, but Officer Leonard Strauss explained that pursuant to DOCS regulations, an inmate who receives a subsequent penalty that imposes more severe confinement than one already being served, he is required to serve the more restrictive sentence first and then complete what is remaining of the lesser penalty (
see, 7 NYCRR 254.7 [a] [2], [3]).
Claimant disagreed with this interpretation and presented a memo from Southport's Deputy Superintendent for Security Services stating generally that "[w]hen your SHU Time is over, you are held on Detention Admission until Classification and Movement in Central Office, Albany, arrange a cell for you at another facility" (Exhibit 1). In the Court's view, however, claimant was clearly obligated to serve out his remaining fourteen days of keeplock time after his SHU penalty was administratively reversed on October 18, 2001. Consequently, claimant has not established, as was his burden, that the fourteen-day additional confinement (until November 1, 2001) was not otherwise privileged (
see Garcia v State of New York, Ct Cl, January 12, 2001, McNamara, J., Motion No. M-62442, [UID No. 2001-011-507], citing Broughton v State of New York, 37 NY2d 451).
The final portion of the claim concerns the five-day period from November 1 through November 6, 2001 when claimant was transferred to Wende Correctional Facility. Officer Strauss, when asked why claimant was not immediately transferred at the expiration of his SHU and remaining keeplock time, explained that it generally takes between five days to two weeks to transfer an inmate from one facility to another in order to ensure there is an available bed at the receiving facility. In this case, he opined, it evidently took five days for claimant to be transferred. Although it was never made clear to the Court why DOCS cannot commence processing an inmate's transfer earlier if the end date of his penalty time is known, DOCS regulations specifically set forth that "[d]etention admissions may be used . . . in cases where an inmate is awaiting transfer from Southport Correctional Facility. . ." (NYCRR 301.3 [a] [3]). Thus, although claimant remained at Southport for five days beyond his period of SHU and keeplock penalty time, he has not demonstrated that such confinement "was wrongful in the sense that it was not authorized and therefore, not privileged" (
Geer v State of New York, Ct Cl, March 9, 2000, McNamara, J., Claim No. 100902, Motion Nos. M-60981, M-61093 [UID No. 2000-011-502]).
Accordingly, the Court finds that claimant has not proven that he was wrongfully confined for any of the periods of time set forth in this claim, and the claim is dismissed.

Let judgment be entered accordingly.

December 30, 2003
Albany, New York

Judge of the Court of Claims

[1] This claim was tried via video conference from the Clinton Correctional Facility.