Claimant, Luis Rosales, a pro se inmate, alleges he was wrongfully confined in
keeplock for a period of sixty days while incarcerated at the Elmira
Correctional Facility (hereinafter "Facility"). The trial of this claim
occurred on February 17, 2004 at said Facility.
The facts of this claim are relatively straightforward and not in dispute. On
June 3, 1997, claimant was placed in keeplock as a result of disciplinary
violations at the Facility.
On June 9, 1997 as a result of a Tier III hearing relative to this first
incident, claimant was found guilty and sentenced to, among other things, 120
days in keeplock, 60 days to be served and 60 days suspended and deferred for 90
days (hereinafter "Disposition #1"). (Cl's Ex. 1 [Superintendent Hearing
Disposition Sheet for June 9, 1997 hearing]). Claimant was released on August
On August 19, 1997, claimant was involved in a second and separate incident and
was charged with violating 100.13 (fighting), 104.13 (creating a disturbance),
and 106.10 (refusing a direct order). At a Tier II hearing held on August 25,
1997, claimant was found guilty on these new charges and was sentenced to, among
other things, keeplock status involving two components. Claimant was sentenced
to 30 days' keeplock to be served from August 19, 1997 through September 18,
1997 on the new charges. Additionally, the hearing officer imposed the 60 days
previously suspended from Disposition #1, the original Tier III hearing of June
9, 1997, and added this previously suspended keeplock term for a total of 90
days keeplock (hereinafter "Disposition #2"). This imposition of the previously
suspended sentence from Disposition #1 was noted on the Disciplinary Hearing
Disposition Sheet from Disposition #2 as "KL
(Cl's Exhibit 1 [Disciplinary Hearing Disposition Sheet for August 25, 1997
hearing]). The previously suspended keeplock term of 60 days was scheduled to
be served from September 18, 1997 through November 17, 1997. Disposition #2 was
rendered on August 25, 1997. (Cl's Exhibit 1 [Disciplinary Hearing Disposition
On August 27, 1997, claimant's appeal from Disposition #1, the original Tier
III hearing of June 9, 1997, was reviewed and reversed.
On or about September 10, 1997, claimant received an additional 20 days of
confinement involving yet a third incident, which the claimant does not contest,
which occurred while in keeplock on the sentence he received as a result of the
August 25, 1997 Tier II hearing. That effectively changed the 30-day release
date imposed at the second hearing from September 18, 1997 to October 8, 1997
meaning the additional 60 day keeplock sentence would then run from October 8,
1997 through December 7, 1997.
Claimant contends quite simply that this additional 60 days of keeplock was
improperly imposed and that he was wrongfully confined from October 8, 1997
through December 7, 1997.
Claimant argues he should have been released on October 8, 1997, but instead
was held for the additional 60 days' on the suspended sentence from Disposition
#1 which was improperly tacked onto Disposition #2, even though Disposition #1
had been reversed and expunged on August 27, 1997. (St's Exhibit A, p 1).
The State contends that at the time of Disposition #2, namely August 25, 1997,
when the suspended 60 days of keeplock time from Disposition #1 was imposed,
that penalty was an available disposition. The State further argues the fact
that Disposition #1 was reversed on August 27, 1997, 2 days after the
Disposition #2 on August 25, 1997, has no impact on the hearing officer's
determination to impose the suspended time in the first instance. (St's Exhibit
A, p 5).
In order to establish a prima facie case for wrongful confinement, a claimant
must demonstrate: (1) the State intended to confine him; (2) claimant was
conscious of the confinement; (3) he did not consent to the confinement; and (4)
the confinement was not otherwise privileged. (
Broughton v State of New York
, 37 NY2d 451, 456, cert denied sub nom.
Schanbarger v Kellogg
, 423 US 929). Generally, disciplinary measures
imposed consistent with the governing rules and regulations are covered by
immunity, except in cases in which the State exceeded the scope of its authority
or violated applicable rules and regulations. (Arteaga v State of New
, 72 NY2d 212).
The fact that the charges were ultimately dismissed
or reversed does not give rise to a cognizable cause of action where there is no
evidence defendant acted inconsistently with its own rules and regulations.
(Gittens v State of New York
, 132 Misc 2d 399; Arteaga
). Moreover, the Court of Appeals has held that the decisions
of correctional employees taking authorized disciplinary measures in compliance
with the governing statutes and regulations are quasi-judicial in nature
deserving of absolute immunity. (Id.
Thus, the only relative inquiry before the court is whether or not claimant was
kept in keeplock in violation of correctional department regulations in relation
to the suspended penalty. Claimant has failed to come forward with any
specific rule or regulation which the State violated, but rather points to 7
NYCRR 250 in general. For its part, the State was unable to point to any
specific authority other than their internal interpretation that since the 60
days was validly available on the date they were imposed the fact that the
underlying charge was reversed and expunged two days later does not mean that
those 60 days have to be subtracted from the sentence imposed on August 25,
Disposition #1 was imposed under the authority of 7 NYCRR Part 254 which
governs superintendent's hearings also known as Tier III hearings. (7 NYCRR
§ 270.3). In connection with such hearings, 7 NYCRR § 254.7 sets
forth various penalties that the hearing officer may impose including, but not
limited to, confinement, restricted meals, and loss of privileges. This
provision further provides as follows:
(7 NYCRR § 254.7 ; emphasis
As such, there is no doubt that the hearing officer responsible for Disposition
#2 properly included the suspended sentence from Disposition #1 as of the date
of the hearing for Disposition #2, namely August 25, 1997. However, claimant is
not asserting that the defendant violated any rule or regulation in issuing the
misbehavior reports or in holding the hearing itself. Rather, claimant simply
alleges that he should not have had to serve the suspended keeplock sentence
after the State was on notice that the underlying determination on which it was
based had been reversed. The court agrees.
It is well-settled that the State is not entitled to immunity for actions that
are without authority or in violation of governing rules and regulations.
Arteaga v State of New York
, 72 NY2d 212). As stated by my learned
colleague, Hon. Stephen J. Mignano, in a case with striking similarity to the
case at bar, an invoked or suspended sentence is "unavailable for reimposition"
when the defendant has notice of its modification or, as here, reversal.
(Ramos v State of New York
, Ct Cl, September 8, 2000, Mignano, J., Claim
No. 94496, p 3 [UID No. 2000-029-017]).
Further, Judge Mignano stated that invoking a suspended sentence, after notice
that the underlying sentence has been modified, "[w]as wrongful, despite the
possibility that the facility could have imposed the same sentence without the
necessity of invoking a prior penalty." (Id.
In sum, the court finds that claimant has met his burden in establishing that
he should have been released from keeplock on October 8, 1997 and, as such, was
wrongfully confined for the 60 days he served in keeplock from October 8, 1997
through December 7, 1997.
The court awards claimant the sum of $600.00, a sum equivalent to $10.00 per
day for each of the 60 days he was wrongfully confined.
LET JUDGMENT BE ENTERED ACCORDINGLY.