New York State Court of Claims

New York State Court of Claims

ROSALES v. THE STATE OF NEW YORK, #2004-019-009, Claim No. 97766


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:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 17, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

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.[1]
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 2, 1997.

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 INV".[2]
(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 Sheet]).

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 York, 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, 72 NY2d 212 ). 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, 1997.

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:
[t]he disciplinary hearing officer may suspend imposition of any penalty for a period of up to 180 days. Any such suspended penalty may be imposed by a subsequent disciplinary hearing or superintendent's hearing officer upon substantiating a charge of misbehavior in a subsequent hearing within the specified period.

(7 NYCRR § 254.7 [4]; emphasis added).[3]

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]).[4] 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.


May 17, 2004
Binghamton, New York

Judge of the Court of Claims

[1]Claimant was found guilty on 3 of 4 charges, namely 104.12 (demonstration); 106.10 (refusing direct order); and 107.10 (interference with an employee). (Cl's Ex. 1[Superintendent Hearing Disposition Sheet]).
[2]"KL INV" is interpreted by this court as "keeplock invoked". (Ramos v State of New York, Ct Cl, September 8, 2000, Mignano, J., Claim No. 94496 [UID No. 2000-029-017]).
[3]Disciplinary or Tier II hearings are governed by a similar provision. (7 NYCRR 253.7 [4]).
[4]Unreported decisions from the Court of Claims are available via the Internet at