Claimant Donald Du Bois, appearing
, 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
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 (
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
, at 214 [citation omitted];
see Davis v State of New York
, 262 AD2d 887, lv denied
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
, 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 (
7 NYCRR 254.7 [a] , ).
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
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
, 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] ).
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
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.