New York State Court of Claims

New York State Court of Claims

McCAIN v. THE STATE OF NEW YORK, #2004-032-040, Claim No. 108161, Motion No. M-67465


Claimant's motion for summary judgment is denied. Although the parties agree on the law, two disputes of material fact remain.

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:
Matthew McCain, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Saul Aronson, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 11, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The background of this claim has been described in an earlier interlocutory decision and order, filed January 6, 2004, and a shortened version of that description will be given here.

Claimant, who was incarcerated in Clinton Correctional Facility at the time in question, alleges that he was wrongfully deprived of one hour of outdoor exercise for fourteen days, from July 15 to July 28 and that the fourteenth day of loss of recreation was altogether improper because it constituted an excessive sentence. Following a Tier 1 disciplinary hearing, the decision rendered on July 15, 2003 sentenced claimant to "13 days loss of all rec. from 7-15-03 till 7-28-03" (McCain affidavit, Exhibit B).

Almost immediately after receiving that sentence, claimant sent a letter to the facility superintendent, asserting that he was still entitled to one hour of "no rec/rec" on each of the days in question and, in addition, that the thirteen day sentence expired July 27, not July 28 (id., Exhibit C). Claimant received a response on July 25 which recounted that he (claimant) had been interviewed by a Sergeant Lapier "and he accurately explained the nature of no rec status to you" (id., Exhibit D2). Thereafter, on July 25, claimant filed a formal grievance (id., Exhibit H). The response to that grievance, issued August 1, 2003 stated, "Grievant is advised records indicate he is no longer on loss of rec. status. Grievant may attend rec. with general population." (id.).

Claimant's arguments are based on the following:
• abA January 15, 1999 Interdepartmental Communication from J. Wood, Deputy Superintendent of Security at Clinton Correctional Facility to facility staff which states in part:
As a result of direction from Central Office and a recent Inmate Grievance decision unemployed/idle inmates who have had their recreation privileges restricted as a result of disciplinary action are to be permitted to attend exercise for one (1) hour daily.
The memorandum goes on to state that these inmates will be permitted to attend "one hour exercise periods daily in the same manner as keeplocked inmates" and will attend with the keeplocked inmates (id., Exhibit J).
• ab7 NYCRR §1704.6 (d), which states:
An inmate who has lost recreation privileges but who is not otherwise keeplocked or confined to his or her cell need not be permitted the daily exercise referred to in subdivision (b) of this section.[1] However, an inmate who is on loss of recreation status and who has no program shall be permitted the daily exercise referred to in subdivision (b) of this section.
• ab7 NYCRR §252.5(a)(1), entitled "Dispositions at violation hearing," which states that penalties for conviction of a violation may include "loss of all or part of recreation (game room, day room, television, movies, yard, gym, special events) for up to 13 days."

On the original return date for this motion, defendant's opposition was based solely on its contention that the motion was premature. The Court granted a continuance, both to cure that problem if it existed (see Wyllie v District Atty. of County of Kings, 2 AD3d 714 [2d Dept 2003]) and to allow defendant to further consider the substantive issue, noting that "based only on the submissions now before the Court, claimant has a possible entitlement to relief, with respect to both causes of action."

In the affirmation and affidavits submitted in further opposition to the motion, defendant does not dispute claimant's assertion that inmates who have been sentenced to no-recreation and who are "idle" (i.e., who have no other reason, such as program assignments, to leave their cell) are entitled to one hour per day of recreation. Sergeant Roland LaPier states, however, that in order to receive this hour of recreation, the inmate must inform the officer who will be making the morning wake-up round that they wish to have recreation. A list of the names of the inmates who request recreation is maintained and is kept for approximately two weeks.

Claimant would be aware of this requirement, Sergeant LaPier maintains, because the facility's Inmate Handbook states, in section XXVIII, that "[a]ttendance for showers, recreation, and non-mandatory meals requires that you inform your company officer when he is taking the list. . . . You should be prepared to advise the officer of your wish to participate at the time the list is taken" (LaPier affidavit, Exhibit A). In addition, an announcement is made over the public address system before each list is taken, and inmates also have the option of asking questions of the correction officers who make rounds of the cell blocks.

It was Sergeant LaPier who investigated claimant's initial complaint. In a To/From memorandum to Captain R. Minogue, who had asked him to conduct the investigation, (id., Exhibit D), Sergeant LaPier stated:
Inmate [McCain] was interviewed to affirm his complaint. Inmate was told that there is no (no rec/rec). If you loose [sic] your rec. and have a program or job, that counts as your out of cell time. If you are idle, it's the responsibility of you the inmate to tell the night officer when he does his 6:00 A.M. list you want one. I checked the keeplock rec. list from 7-15-03 to 7-28-03 and didn't find that you had asked for rec.
With respect to claimant's allegation that he was kept on "loss of recreation" status for an extra day, Sergeant LaPier states that the sentence of "loss of recreation" to run 7/15/03 till 7/28/03 means that the last date, 7/28, is the date that the inmate is eligible to return to normal recreation. While there is no documentation to support this interpretation, claimant has not disputed it.

A party that has made a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law "by producing evidentiary proof in admissible form" that is sufficient to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). There is a burden on all parties, including the moving party, to submit all relevant evidence, because when one party has moved for summary judgment in its favor, the Court may search the record and grant that relief to the opposing party, without the necessity of notice or a cross-motion (CPLR 3212[b]; Abramovitz v Paragon Sporting Goods Co., Inc., 202 AD2d 206 [1st Dept 1994]; Addison v Addison, 192 AD2d 334 [1st Dept 1993]).

The parties do not disagree on the relevant law: claimant was entitled to one hour recreation each day during his thirteen day sentence of "loss of recreation" and his sentence was imposed for only thirteen, not fourteen, days. There are two material issues of fact, however, that remain in dispute: whether claimant requested that one hour of recreation to which he was entitled and whether he was still under "loss of recreation" status on the fourteenth day. Sergeant LaPier states that he never requested the recreation and that the language of the sentence meant that he was to be returned to his normal status on the fourteenth day. Claimant, on the other hand, states in his claim that he "inform[ed] every officer that was taking the list" that he wanted to take the hour of recreation (claim, ¶5) and that he was subjected to an extra day of loss of privilege status on July 28, 2003 (claim, ¶13). A trial will be necessary to resolve these factual disputes.

Claimant's motion is denied.

June 11, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for summary judgment in his favor:
1. Notice of Motion and Supporting Affidavit of Matthew McCain, pro se, with annexed Exhibits

2. Affirmation in Opposition of Saul Aronson, Esq., AAG, with annexed Exhibits

3. Further Affirmation in Opposition of Saul Aronson, Esq., AAG, with annexed affidavit of Sergeant Roland LaPier, with annexed Exhibits

Filed papers: Claim; Answer

[1] Subdivision (b) provides that inmates are to be permitted one hour of exercise outside their cell each day. This exercise is to be out-of-doors unless weather or the size of population or the physical plant of the facility makes such unfeasible on a daily basis. If daily out-of-doors exercise is not feasible, outdoor exercise is to be provided every other day. Indoor exercise is to be substituted on all other days.