New York State Court of Claims

New York State Court of Claims

BAILEY v. THE STATE OF NEW YORK, #2004-016-067, Claim No. 105220


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):

Alan C. Marin
Claimant's attorney:
Kevin Bailey, Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph Romani, Esq., AAG
Third-party defendant's attorney:

Signature date:
October 22, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)

In his claim, Kevin Bailey alleges that he was improperly housed in double-cell housing at Sullivan Correctional Facility. The claim was tried at Sullivan, where claimant testified on his own behalf and defendant called Deputy Superintendent Peter J. Healy.

Mr. Bailey maintained that he "[had] a right to . . . stay in [a] double bunk no more than 60 days." Claimant testified that on March 27, 2001, he was transferred from Wende Correctional Facility to Sullivan, where he was assigned double-cell housing. According to claimant, at that time, Sullivan had a procedure where "you signed some type of waiver stating that you would like to remain in the double bunk [beyond 60 days] . . . [or] . . . if you wish[ed] not to stay in the double bunk . . . you can also sign saying that you wish not to stay in the double bunk, and then you will be removed, or they would transfer you to another facility where . . . they had single cells." Bailey said he was told if he signed the waiver and stayed in the Sullivan double-cell beyond 60 days, he would be placed on a seniority-based waiting list for a single-cell.

Bailey indicated that he wished to stay at Sullivan and he perceived the choice he was given as "retaliatory" because if he wanted to move to a single-cell after 60 days, "then you're sending me back to the western region of the State somewhere." He testified that he thus signed the waiver "with a stipulation . . . [s]tating that . . . this is [a] retaliatory [measure] . . ." Claimant also suggested that the seniority list was not adhered to, although he provided no details.

With regard to such "waiver," claimant submitted as exhibit 1 a blank form entitled "Sullivan Correctional Facility Double Cell 60 Day Option Form." Defendant submitted as Exhibit A the same document, but with Mr. Bailey's signature under option #1, which reads: "I agree to remain in a double cell at Sullivan Correctional Facility until my name is reached on the Double Cell Seniority List. I want to take the first available [single] cell [at Sullivan] when my name is reached." The form contains two other options: Option #2 is identical to option #1, except that the inmate volunteers to remain in a double-cell until a single-cell becomes available in his own cell block. Option #3 provides that the inmate does not agree to remain in a double-cell beyond 60 days and understands that he will be submitted for transfer to any facility that can accommodate him in a single-cell. Claimant objected to the introduction of exhibit A because he said it did not contain his notation that he felt the choices were "retaliatory," although he conceded on cross-examination that it was his signature that appeared on the form.

Bailey testified that he was on the seniority list for seven months, after which he was placed in a single-cell at Sullivan. When asked as to his damages, claimant stated that he "suffered sleepless nights."
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Deputy Superintendent Peter J. Healy testified that at the time in question, he was employed at Sullivan Correctional Facility as a facility captain, and one of his duties was to deal with double-cell housing.

Mr. Healy stated that upon Bailey's arrival at Sullivan, staff members performed a review as to whether he was suitable for double-cell housing. Part of that process was the preparation of a Double-Cell Information Sheet, which was given to Healy for signature on March 26, 2001. See defendant's exhibit D. Healy testified that in addition to the aforesaid Information Sheet, medical personnel prepared a "Screening and Physical Assessment for Placement in a Double-Cell" form as to claimant (see defendant's exhibit E). According to Healy, following such assessments, claimant was found suitable for double-cell housing.

With regard to the seniority list, Healy testified that "[o]nce it's been determined that you are suitable for double celling, the date of your arrival at the facility is used as a start date, and then by seniority . . . inmates were moved to the single cells." The list was maintained by his office and was updated on a weekly basis. Healy also testified that someone could not "jump ahead or fall behind on [the] list."
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As set forth more fully below, part 1701 of 7 NYCRR sets out a multiple-step process with regard to double-cell housing. First a determination is made as to whether an inmate is "eligible" for double-cell housing, after which it is determined whether he is "suitable" for such housing. If an inmate is found eligible and suitable and is placed in double-cell housing, after 60 days, he must either be moved to an available single-cell at his current facility or another facility, unless he volunteers to remain in his double-cell.

7 NYCRR §1701.5 is entitled "Selection of inmates for double-cell housing" and subdivision (b)(2) thereof relates to the eligibility of general population inmates transferred from other facilities to be placed in double-cell housing. Essentially, subdivision (b)(2) provides that such inmates are eligible for double-cell housing, unless they meet all of the following criteria, in which case, they may not be assigned to a double-cell:
(i) the inmate has been with the department for at least two years following initial reception/classification and transfer to a permanent facility;

(ii) the inmate has had no Tier II or III disciplinary determinations of guilt within the last two years;

(iii) the inmate has not volunteered for double-cell housing (a transfer sought by an inmate may be conditioned upon the inmate volunteering to be housed in a double-cell at the receiving facility); and

(iv) the inmate is not being transferred to Woodbourne Correctional Facility.

A May 7, 2001 memorandum from the Sullivan Superintendent to claimant (see defendant's exhibit C) states in relevant part as follows:
In response to your complaint about our double-cell policy, I have conferred with [your senior counselor] . . . Originally at Wende CF you had requested to be transferred to a downstate facility. Inasmuch as you have had three behavior reports within the last two years, you were eligible for double-cell without signing a wavier.

Accordingly, claimant was eligible for double-cell housing upon his arrival at Sullivan; he did not dispute that he had had disciplinary determinations in the two years prior to his Sullivan transfer.
Subdivision (c) of 7 NYCRR §1701.5 provides that an assessment of suitability must be performed as to any double-cell-eligible inmate, including a physical assessment by the medical staff. There are two forms to be completed in connection with such assessment, which are contained in 7 NYCRR §1701.9. Deputy Superintendent Healy testified that such assessment was performed as to claimant and that the two forms were completed. See defendant's exhibits D and E. As set forth above, claimant was found suitable for double-cell housing.

7 NYCRR §1701.7(d) provides that once an inmate has been placed in double-cell housing:
No inmate shall be confined in a double-cell for a period of more than 60 days unless such inmate volunteers to remain in the double-cell for a longer period of time. At the expiration of the 60 days, if an inmate does not volunteer to remain in a double-cell, the inmate shall be moved to a single-cell or multiple occupancy housing at either his current facility or a new facility.

As set forth above, claimant testified that he was given a "Sullivan Correctional Facility Double Cell 60 Day Option Form," a blank copy of which he submitted as exhibit 1. Such form gave him the option of either agreeing to stay in a double-cell and wait for a Sullivan single-cell when his name was reached on the seniority list, and it also gave him the following option: "I do
not agree to remain in a double cell at Sullivan Correctional Facility beyond 60 days. I understand that I will be submitted for transfer to any facility that can accommodate me in a single cell." Such form is clearly in compliance with the requirements of 7 NYCRR §1701.7(d). Contrary to claimant's assertions, there was no requirement that he be moved to a single-cell at Sullivan Correctional Facility after the expiration of 60 days - - by the very terms of §1701.7(d), he could either choose to stay in the double-cell at Sullivan and wait for a single-cell to become available there, or he could immediately go to an available single-cell at another facility.
Claimant conceded that his signature appeared under option #1,
i.e., that he agreed to remain in a double-cell until his name was reached on the seniority list. See defendant's exhibit A. Even if claimant could prove that he had made a notation that he was making the choice under protest[1], such would not alter the fact that the options offered on such form were in compliance with 7 NYCRR §1701.7(d).
Claimant made no showing that the use of a seniority system for assigning single-cells to those who agreed to wait was at variance with any applicable policies and procedures. Nor did he prove that the seniority list was not followed.

In short, I find that claimant has failed to prove that defendant violated any applicable rules and regulations in connection with his double-cell housing at Sullivan Correction Facility. Accordingly, it is ordered that claim no. 105220 be dismissed.


October 22, 2004
New York, New York

Judge of the Court of Claims

  1. [1]Defendant's exhibit A contains no such notation.