New York State Court of Claims

New York State Court of Claims

CARLISLE v. THE STATE OF NEW YORK, #2006-034-612, Claim No. 109283, Motion No. M-72193


Directive 4802, III (c) (4) (d) provides the basis for recovery of prisoner’s lost wages, which accrues upon the reversal of the disciplinary determination. Remainder of claim dismissed as untimely and upon basis of qualified immunity for disciplinary proceedings.

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:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 5, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has moved for summary judgment or dismissal of the claim pursuant to CPLR 3212 and/or 3211. The Court will grant the motion, in part.

The Court has reviewed the following documents:

1. Claim, verified April 22, 2004, filed April 30, 2004;

2. Answer, verified May 25, 2004, filed May 27, 2004;

3. Notice of Motion, dated August 24, 2006, filed August 25, 2006;

4. Affirmation of James L. Gelormini, dated August 24, 2006, with attached exhibits;

5. Affidavit in Opposition of Antwane Carlisle, sworn to September 7, 2006, filed September 11, 2006, with attachments.

Claimant, an inmate, has sought to recover monetary damages relating to his alleged wrongful confinement at Attica Correctional Facility (“Attica”) and Upstate Correctional Facility (“Upstate”) between August 28, 2002 and November 28, 2002. That confinement resulted from an inmate misbehavior report that was filed against him on August 28, 2002, and proceeded to a Tier III disciplinary hearing on September 10, 2002. At the hearing Mr. Carlisle was convicted of the institutional charges filed against him, and directed inter alia to Special Housing Unit (SHU) confinement from August 28, 2002 until September 28, 2002, followed by keeplock confinement from September 28, 2002 until November 28, 2002. The disciplinary determination was later reversed on or about February 9, 2004.

Claimant has urged multiple bases for recovery against the State: first, that he was deprived of due process because his disciplinary hearing was not conducted within seven days of his confinement, as provided under 7 NYCRR 251-5.1 (a); second, that the determination was flawed on grounds of the hearing officer’s bias and a lack of substantial evidence; third, that officials failed to allow him to observe the property inventory that led to the discovery of the weapon that served as the basis for the misbehavior report as provided under Directive 4933 (“Special Housing Units”), § 302.2 (g) (2);[1] fourth, that he was wrongly transferred from keeplock confinement at Attica to the SHU at Upstate, thereby improperly enhancing the disciplinary confinement imposed by the hearing officer; and fifth, that he was denied a reimbursement of back program wages following the reversal of the Tier III determination.

Defendant now moves to dismiss the claim on several grounds, including untimeliness. In that regard the State contends that the various claims would have accrued on November 28, 2002, the date his confinement under the disciplinary determination ended. Claimant, in turn has urged that the claims would not have accrued until February 9, 2004, when the Tier III determination was reversed. In the Court’s view the causes of action asserted within the claim present several accrual dates, only one of which could be deemed timely.

Court of Claims Act §§ 10 (3) and 10 (3-b) respectively require that claims for negligence and intentional torts must be filed and served within 90 days of accrual, unless a notice of intention to file a claim is served upon the Attorney General within that same time period. Those requirements are to be to be strictly construed, and the failure to comply is a jurisdictional defect which compels dismissal (Alston v State of New York, 97 NY2d 159 [2001]). A cause of action for wrongful confinement within the prison context accrues upon the termination of confinement (Ramirez v State of New York, 171 Misc 2d 677, 679-680 [1997]). For that reason all allegations of misconduct that led to Claimant’s conviction and confinement would be time-barred, and the claims of delay in the conduct of the hearing, bias on the part of the hearing officer, insufficient evidence and any impropriety in the conduct of Mr. Carlisle’s property inventory must be dismissed.

To the extent Claimant might urge a cause of action for malicious prosecution, which would accrue upon a favorable termination of the underlying proceeding (see Boose v City of Rochester, 71 AD2d 59, 65 [1979]), that ground for relief is inapplicable to Tier III inmate disciplinary proceedings, as they lack sufficient attributes of judicial proceedings to be fairly characterized as such (Treacy v State of New York, 131 Misc 2d 849 [1986], affd sub nom. Arteaga v State of New York, 125 AD2d 916 [1986], affd 72 NY2d 212 [1988]). So also, assuming that Claimant’s allegations of a subsequent improper transfer to Upstate, and a continued confinement in that facility’s SHU until May of 2003, could support the application of that release date for accrual of causes of action based thereon, the claim still would be untimely.

Conversely, the claim for reimbursement of back program wages is based upon Directive 4802, entitled Inmate Payroll Standards, as revised March 30, 2003. That directive, at section III (c) (4) (d), provides that
[i]f an inmate was suspended or confined to his or her cell or to special housing (SHU) pursuant to a disciplinary hearing, and subsequently found innocent, or if the disciplinary hearing is subsequently reversed for procedural error, the inmate will be reimbursed at the unemployed rate for six hours per day, excluding weekends and holidays, for all time served while in keeplock or SHU status; if the inmate was in the interim transferred to another facility, the facility at which the inmate is currently housed shall be responsible for the payment (emphasis in original).
Clearly, Claimant’s entitlement to reimbursement under that provision only arose upon a favorable disposition, i.e., the reversal of the Tier III determination. Absent a violation of governing statutes or regulations, Claimant would not otherwise have possessed a right to recoup damages for time spent in disciplinary housing pursuant to such a determination, even where that disposition is later reversed (Minieri v State of New York, 204 AD2d 982 [1994]; see Arteaga v State of New York, 72 NY2d 212 [1988]). Since a cause of action accrues “when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court” (Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]), the claim for program wage reimbursement would only have accrued as of the February 9, 2004 reversal of the disciplinary determination, and thus has been timely interposed.

Independent of the statute of limitations most of Claimant’s grounds for relief would fail. Accepting that Claimant was not afforded a hearing addressed to the August 28, 2002 misbehavior report until September 10, 2002, Defendant has established that at the point Mr. Carlisle was charged he was already under restrictive confinement pursuant to a misbehavior report filed August 26, 2002 (see affirmation of James L. Gelormini, dated August 24, 2006, Exhibit B). For that reason the seven-day hearing commencement provisions set forth within

7 NYCRR 251-5.1 (a) were inapplicable to the later proceeding (Matter of Headley v Goord, 274 AD2d 714, 715 [2000]; Matter of Nelson v Selsky, 239 AD2d 795, 796 [1997]). The Court similarly rejects Claimant’s assertion that his transfer to Upstate from Attica impermissibly caused his keeplock confinement to be converted to a more severe SHU punishment. Under 7 NYCRR 301.6 (a) (2), keeplock status inmates can properly be placed in SHU at Upstate (Mitchell v State of New York, 32 AD3d 594 [2006]). More generally, in the performance of their duties in the pursuit of disciplinary proceedings against Claimant, and extending to the conduct of the Tier III hearing itself, the actions of the correctional employees were quasi-judicial in nature, and cloaked in absolute immunity (Arteaga v State of New York, 72 NY2d 212 [1988]). That immunity extended not only to the hearing process, but also to Defendant’s interpretation of 7 NYCRR 301.6 (a) (2) to allow for Claimant’s transfer to Upstate (see Mitchell, 32 AD3d 594).

Lastly, the Court will deny dismissal of the cause of action for back program wages. Mindful that the State has submitted certified documentary records reflecting some payment toward that claim (see Gelormini affirmation, Exhibit C), Mr. Carlisle has disputed both the fact of payment and the total sum due. When viewed in a light most favorable to Claimant, as the nonmoving party, and mindful that summary judgment is a drastic and disfavored remedy (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]), the Court finds that some question of fact exists in that regard. The Court rejects Defendant’s assertion that the lost wage cause of action be dismissed for failure to exhaust Claimant’s institutional administrative remedies, as set forth under Court of Claims Act § 10 (9). That provision, by its terms, is limited to claims “for recovery of damages for injury to or loss of personal property.” Claimant has not sought to recover for injury or loss to an item of personal property – even broadly construed – that had been possessed within an institutional setting. Rather, he has sought to recoup a form of damage arising from a claimed wrong, as authorized under a facility directive.

Based upon the above, it is hereby

ORDERED, that Defendant’s motion for summary judgment or dismissal is granted in part, and the causes of action set forth within claim No. 109283 are hereby dismissed, with the exception of the cause of action to recoup back program wages, which remains pending before the Court.

December 5, 2006
Buffalo, New York

Judge of the Court of Claims

[1]. see also 7 NYCRR 302.2 (g) (2).