New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2004-032-053, Claim No. 108857, Motion No. M-68156


Defendant's motion to dismiss this claim is denied. More information is needed to determine whether 7 NYCRR 301.6, which creates the status of "keeplock in a special housing unit," can apply to an inmate who is sentenced to keeplock while housed in another maximum security facility and then transferred to Upstate Correctional Facility.

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:
Dontie S. Mitchell, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kathleen M. Resnick, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 22, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim[1] challenges the Department of Correctional Services' (DOCS) apparent interpretation of one of its own regulations, 7 NYCRR §301.6. Claimant contends that the manner in which DOCS applies this regulation is incorrect, since it subjects inmates of maximum security prisons who are transferred to Upstate Correctional Facility while serving a sentence of "keeplock", to a harsher punishment than the one to which they were sentenced.

Most of the facts giving rise to this claim are undisputed. During the spring and summer of 2001, while claimant was incarcerated at Sing Sing Correctional Facility, a maximum security facility, he was charged with and convicted of at least two disciplinary infractions (Resnick affirmation, Exhibits A, B). Following hearings on those infractions (one being a Tier II hearing and the other a Tier III hearing), combined penalties were imposed that placed claimant on keeplock status from April 12, 2001 until November 25, 2001.[2] On June 28, 2001, before he had completed serving this sentence, officials at Sing Sing decided to transfer claimant "to any suitable max" because of the number of disciplinary charges that had been brought against him within the past six months (id., Exhibit C).[3] On July 12, 2001, claimant was transferred to Upstate Correctional Facility, and he remained there until January 11, 2002, a total of 183 days.[4]

If claimant had remained at Sing Sing Correctional Facility or if he had been transferred to any other maximum security facility in the State, his keeplock sentence would have been served in a private cell located in a general population housing unit. He would have been allowed to have his own clothing and his own property, and as claimant's first sentence demonstrates (see footnote 2), he would have been allowed out on certain occasions, such as when he needed to take final examinations in a college course. In general, however, a keeplocked inmate is restricted to his cell for twenty-three out of twenty-four hours (Joyner v State of New York, 133 Misc 2d 86, n 1 [Ct Cl 1986]).

For that reason, the inmate loses privileges that require departure from his cell, such as attending meals at the mess hall. No other privileges are automatically lost, however. It is not unusual for disciplinary penalties to consist of keeplock plus the loss of certain other privileges, but this is strictly at the discretion of the hearing officer. In addition, the duration of the keeplock sentence can differ from and is frequently longer than that of other privileges that are lost. For example, in June 2001, claimant was sentenced to keeplock for three months plus loss of package, phone, and commissary privileges for only thirty days (Resnick affirmation, Exhibit B).

When claimant arrived at Upstate Correctional Facility, however, he was placed in a Special Housing Unit (SHU) and he was subjected to additional restrictions and loss of privileges that were mandatory in SHU and that were to last as long as he remained at the facility on keeplock status. These restrictions, which are also applicable to the inmates sentenced to SHU, included the following: he could wear only State-issued clothing and have only State-issued bedding, toiletries, and writing materials (7 NYCRR 302.2[a]-[d]); he was allowed only certain personal items (such as dentures, eyeglasses and religious items) and then only upon request and subject to the approval of correction officials, with the rest of his personal property being stored (302.2[e]-[g]); he could have only one non-legal visit per week (302.2[i][1][i]) and additional restrictions could be placed on the conditions of such visitation (302.2[i][1][ii]); he could have no telephone calls (302.2[i][2]); and could receive no packages other than books, periodicals or legal materials (320.2[i][3]). He was, however, allowed to send and receive correspondence (302.2[h]).

The regulation that is given as authority for this type of keeplock confinement is 7 NYCRR §301.6, which reads in full, as follows:




301.6 Keeplock admission

(a) An inmate in a medium or minimum security correctional facility or Upstate Correctional Facility may be housed in a special housing unit for reasons such as, but not limited to, the following:
(1) awaiting disposition of a disciplinary (Tier II) or superintendent's (Tier III) hearing;

(2) for confinement pursuant to a disposition of a disciplinary (Tier II) or superintendent's (Tier III) hearings;[5] or

(3) awaiting transfer to another facility.

(b) An inmate in any correctional facility may be admitted to a special housing unit for confinement [where there is] a determination that the inmate violated rule 106.11 (section 270.2[B][7][ii] of this Title).[6]

(c) Inmates assigned to keeplock status in a special housing unit pursuant to this section shall be subject to the property limitations set forth in section 302.2(a)-(g) of this Title.

(d) Inmates assigned to keeplock status in a special housing unit pursuant to this section shall be, subject to the visiting conditions set forth in section 302.2(i)(1) of this Title, unless restricted by disciplinary or administrative action.

(e) Inmates assigned to keeplock status in a special housing unit pursuant to this section shall be subject to the package limitations set forth in section 302.2(i)(3).

(f) Inmates assigned to keeplock status in a special housing unit pursuant to this section shall have their commissary privileges suspended pending a determination in a disciplinary proceeding.

(g) Inmates assigned to keeplock status in a special housing unit pursuant to this section shall be subject to the limitation on telephone calls contained in section 302.2(i)(2) of this Title.

(h) Inmates assigned to keeplock status in a special housing unit pursuant to this section shall be afforded correspondence privileges as set forth in section 302.2(h) of this Title.

As the regulation indicates the status of prisoners who are placed in "keeplock status in a special housing unit" are in a different category from those who are on full SHU status. For example, the latter group has committed infractions for which they were sentenced to SHU, presumably more serious infractions than those that led to a sentence of keeplock. In addition, the SHU inmates are subject to all of the restrictions in 7 NYCRR 302.2, described above, and to additional, more severe restrictions. These include the possibility of being placed on a restricted diet (304.2), restrictions on religious activities and religious access (304.9), education only by cell study programs (304.11), limited library access (304.12), strip-frisk on first entering the unit and pat-frisk upon every return from exercise, hearing or other out of unit activity (305.1), and being required to wear mechanical restraints whenever they are escorted off the unit (305.3) (see generally 7 NYCRR, Chapter IX).[7]

Claimant contends that this regulation was never intended to apply to inmates, like himself, who were sentenced to keeplock at other maximum security facilities, because those facilities have individual cells to which an inmate can be confined. The regulation, he argues, applies only to inmates who are actually "in" a medium or minimum security facility or "in" Upstate Correctional Facility when the keeplock sentence is imposed. Because those prisons do not have individual, non-SHU cells to which the inmates can be confined, placement in SHU is warranted. Defendant, on the other hand, contends that the regulation is meant to apply both to those inmates who are "in" the listed facilities when sentenced to keeplock and to any inmate, such as claimant, who is transferred to (and thus placed "in") Upstate Correctional Facility while serving a keeplock sentence that was imposed elsewhere.

The argument put forth by claimant has been raised on at least two other occasions. In Matter of Shanholtzer v Selsky (291 AD2d 588 [3d Dept 2002], lv denied 98 NY2d 607 [2002]), an inmate was placed in keeplock at Green Haven Correctional Facility, a maximum security facility, and then transferred to Upstate, where he was placed in an SHU unit pursuant to section 301.6. By way of an Article 78 proceeding, he sought to challenge the more-restrictive confinement to which he was subjected, arguing that "he could not be transferred from another facility to serve his previously imposed keeplock penalty in Upstate's SHU because he was thereby subjected to a harsher penalty than that imposed as a result of the disciplinary proceedings" (id., at 589). By the time that inmate's petition was heard, however, he had been released from SHU. Supreme Court determined that because release from such confinement was the only relief to which he would have been entitled and that had been achieved, the petition had to be dismissed. The Third Department concurred: "Regardless of the merits of petitioner's claim, we agree with Supreme Court that release from SHU, which has already occurred, is the only relief to which petitioner could be entitled in this proceeding." This does not answer the question for the Court of Claims, however, because in this Court an inmate may recover money damages for wrongful confinement, i.e., confinement that is more restrictive than that authorized by applicable statutes and regulations.

Counsel for defendant has brought the Court's attention to another similar challenge that was made in the context of a Court of Claims' action. In Applegate v State of New York (UID #2002-011-109, Claim No. 103537, July 8, 2002, McNamara, J.), the claimant had also been sentenced to keeplock while confined at Green Haven Correctional Facility and then transferred to Upstate Correctional Facility while he was still serving that sentence. He was placed in SHU to serve the remainder of his keeplock sentence pursuant to section 301.6, and he also challenged that more restrictive confinement. That portion of the claim was dismissed because "[i]n carrying out their duties relating to security and discipline, the actions of correction employees are quasi-judicial in nature and are cloaked with absolute immunity so long as the actions are not taken beyond their authority or in violation of the governing rules and regulations (Arteaga v State of New York, 72 NY2d 212, 220)." In addition, counsel for defendant provides another reason for rejecting claimant's argument and dismissing this claim: the deference owed by courts to an agency's construction of its own statutes and regulations (see Matter of Howard v Wyman, 28 NY2d 434 [1971]; Matter of Elcor Health Servs. Inc. v Novello, 295 AD2d 772, 774 and cases cited therein).

The Court has no quarrel with either of these principles but finds that neither resolves the matter presently before it, at least on the current submissions. The central issue raised by claimant is whether his transfer to Upstate Correctional Facility and imposition of the " a special housing unit" status was, in fact, done in accordance with the governing rules and regulations. If the regulation is correctly interpreted by claimant (see discussion below) then the action was taken without lawful authority and the immunity described in Arteaga (supra) does not apply. Defendant has not presented any statement from an appropriate DOCS official to establish that the interpretation of the regulation implied by claimant's transfer and subsequent treatment is, in fact, the agency's own official interpretation. The basis for claimant's argument in favor of another interpretation and the Court's own questions, both are which are set out below, raise significant questions about this critical fact. The Court also accepts that the decision to transfer an inmate is within DOCS' broad discretionary powers, and inmates have no right to select the facility in which they are incarcerated (Matter of Martin v Coughlin, 207 AD2d 932 [3d Dept 1994]). On the other hand, when the simple act of ordering a transfer automatically brings about a substantive change in the condition of an inmate's confinement, it would seem that there must be some independent justification for imposing any greater confinement in the new location.

Claimant's proposed interpretation of 7 NYCRR 301.6 is quite simple. He argues that the " a special housing unit" status is intended to apply only to those inmates who are in a medium or maximum facility at the time they are sentenced or who are in the "cadre" of better-behaved inmates who perform the maintenance and service jobs within that facility (e.g., act as porters, work in the kitchen). The reason these inmates qualify for this quite different form of keeplock, according to claimant, is most pragmatic: for inmates in the medium and maximum facilities or for "cadre" prisoners at Upstate Correctional Facility, there are no separate cells in which they can be keeplocked in the traditional fashion. Double bunking and dormitory type living arrangements do not lend themselves to "keeplock" in the traditional sense, and the facilities where these inmates reside have only two types of accommodations: more open housing unsuited for keeplock or the facility's SHU units. With respect to the need for including inmates in Upstate Correctional Facility in the regulation, claimant states:

[I]ts cadre prisoners, who are housed there for maintenance and service

oriented purposes . . . are ordinarily neither on keeplock or SHU status.

Being that cadre prisoners are double bunked, if one gets keeplocked but [his] bunky does not, it would allow him to circumvent some of the restrictions keeplock confinement imposes if he remains in the cell with his bunky. . . .

(Mitchell affidavit, ¶13.)

An earlier version of section 301.6 appears to lend support to claimant's interpretation. The original version of the regulation expressly excluded maximum security facilities from the effect of section 301.6. This earlier version, which is quoted in Lee v Coughlin (26 F Supp 2d 615, 628 [SDNY 1998]), required in subsection (h), if any inmate so confined to keeplock in an SHU unit pursuant to 301.6 was transferred to a maximum security facility, he "shall not be assigned to the special housing unit at the receiving facility [but] assigned to keeplock within general population and shall have the same rights and responsibilities as other keeplocked inmates in that facility."

Upstate Correctional Facility was established in 1999 (see 7 NYCRR 100.129 enactment date) and shortly thereafter section 301.6 was amended to add it to the medium and minimum security facilities to which the regulation already applied. This, according to claimant, is because Upstate is a "SHU designated facility." It is also the Court's understanding that Upstate Correctional Facility is different from other maximum security facilities, both in physical structure and in purpose. Following a recent trial in which evidence was presented about this prison, this Court described the prison as "a 24 hour lock-down maximum security prison" (Johnson v State of New York, UID #2003-032-523, Claim No. 103166, Dec. 3, 2003, Hard, J.). DOCS' regulations do not clearly reflect this difference, and Upstate Correctional Facility is given the same designation as other maximum security facilities: it is "a general confinement facility" (compare 7 NYCRR 100.129 with 7 NYCRR 100.25 [Sing Sing Correctional Facility] or 7 NYCRR 100.20 [Green Haven Correctional Facility]). The regulations do recognize at least one difference, however, by including this maximum security prison in section 301.6 and exempting it from the out-of-cell meal requirement for protective custody inmates because "the facility is specifically designed for meals to be provided within each double-occupancy cell"(7 NYCRR 330.5[b]). It is the Court's understanding that Upstate Correctional Facility is almost the mirror image of a medium or minimum security facility: the great majority of its housing is of the highest level security (SHU) while a small portion of the facility, where the "cadre" inmates live, is more open and similar to the setting found in medium and maximum facilities.[8] Whether or not this understanding is accurate, it is evident that more factual information needs to be provided before the regulation, and the reason for Upstate Correctional Facility's inclusion in it, can be understood.
Claimant's argument, therefore, is that section 301.6 does not provide authority for this " special housing" status to be imposed on him. When he was sentenced to keeplock, he was neither "in" Upstate nor "in" a medium or minimum security facility, so none of the reasons he presents for creating this interim category of disciplinary confinement could apply to him. "[I]f the hearing officers who imposed the penalties against me at Sing Sing thought that my behavior warranted me to be placed in SHU, they would have and, indeed, could have imposed a SHU sentence," a sentence that could have been served at Sing Sing or at any of the other maximum security facilities, including Upstate Correctional Facility (Mitchell affidavit, ¶8). The sentence that he did receive, keeplock and for a portion of the time loss of other privileges, could have been served, in the normal fashion and without the need to place him in an SHU, either at Sing Sing or at any other maximum security facility except Upstate Correctional Facility.

Finally, the Court has to question whether section 301.6 applies to all inmates who are in Upstate Correctional Facility and, if not, what that implies about the purpose of the regulation. If, as defendant asserts, the regulation authorizes the "keeplock in a special housing unit" status to anyone who is transferred into this prison while serving a keeplock sentence, then it must apply to all inmates who are already in the prison. As indicated above, it appears that the majority of inmates at Upstate Correctional Facility are assigned to SHU. What happens then if one of those inmates commits an infraction, receives a Tier II or Tier III hearing, and is sentenced to keeplock? Certainly they would not be placed on the status established by section 301.6, because that would place them on fewer restrictions than they are already facing. That is, in SHU they are already subject to the restrictions of 302.2 plus the more harsh restrictions found in parts of sections 304 and 305. Inmates on " a special housing unit" status are subject only to the restrictions in section 302.2 that are incorporated in section 301.6. If, as seems likely, section 301.6 applies only to the cadre workers at Upstate Correctional Facility, because it would be illogical and against penal interest to apply it to the other inmates, one is brought right back to claimant's principal argument: that the regulation applies only to inmates who are in medium or minimum security settings, or their equivalent.

Because there are a number of significant questions of fact, questions that could only be answered by some direct input and explanation from DOCS, defendant's motion to dismiss this claim is denied.

June 22, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affirmation of Kathleen M. Resnick, Esq., AAG , with annexed Exhibits and Memorandum of Law

2. Affidavit in Opposition of Dontie S. Mitchell, pro se

Filed papers: Claim

[1] The claim was filed and served following claimant's successful motion for permission to file an untimely claim (Mitchell v State of New York, UID #2003-032-119, Claim No. 105681, Motion Nos. M-66664, M-67186, CM-66776, December 17, 2003, Hard, J.).
[2] From the earlier hearing sheet (Resnick affirmation, Exhibit A), it appears that claimant was sentenced to keeplock from April 12, 2001 to August 25, 2001, with the exception of five days in May 2001 when he was to be released in order to take final examinations for what appear to be college level courses. There are notations that could be read as indicating that an additional sentence of two months keeplock was suspended. For the latter infraction (id., Exhibit B), claimant was sentenced to two months of keeplock "invoked," covering the period from August 26, 2001 to October 26, 2001, and an additional 30 days from October 26, 2001 to November 25, 2001.
[3] The transfer report indicates that during those six months, claimant had three Tier III and two Tier II hearings and had been sentenced to more than 8 months of keeplock. The dates covered by those sentences are not given, however.
[4] As is discussed below, claimant would remain on keeplock status as long as he was at Upstate Correctional Facility. The Court has not been informed of the reason he was kept there until January 2002 when his keeplock sentence apparently ended in November 2001. In any event, claimant is not seeking compensation for having served any additional days in keeplock.
[5] DOCS has a three-tier system of prison discipline. Tier I hearings are for violations and the penalties may not include either keeplock or SHU (7 NYCRR 252.5). Tier II penalties include keeplock or assignment to a special housing unit under keeplock admission for up to 30 days (7 NYCRR 253.7). A Superintendent's (Tier III) hearing can sentence an inmate to either keeplock or SHU for a specified period (7 NYCRR 254.7).
[6] 7 NYCRR 270.2[B][7][ii] which requires inmates to promptly obey all orders of facility personnel to provide DNA samples.
[7] In fact, claimant alleges that he was subjected to some of the additional restrictions, such as wearing mechanical restraints when outside his cell, that according to the regulations apply only to SHU inmates, not inmates assigned to "keeplock status in a special housing unit." This allegation sets forth a claim that is not dependent on the interpretation given to 301.6 and is not addressed in defendant's motion to dismiss.
[8] A description of Southport Correctional Facility, another "entirely SHU" facility with a limited number of "cadre" inmates, is contained in Lee v Coughlin (26 F Supp 2d 615, 624-625, supra). It would be interesting to know why Southport is not also referenced in section 301.6.