New York State Court of Claims

New York State Court of Claims

TOWLES v. THE STATE OF NEW YORK, #2006-036-007, Claim No. 103271


Inmate awarded damages for excessive confinement to keeplock status in connection with transfer for Court of Claims trial.

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:
ELIOT SPITZER, ATTORNEY GENERALBy: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 21, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, who was an inmate at Mid-State Correctional Facility when this claim accrued, seeks damages resulting from the defendant’s alleged failure to provide him with recreation, showers, access to the law library and other rights or privileges during the period from August 10, 2000 through August 30, 2000, when he was confined at Elmira Correctional Facility where he had been brought for the trials of two different claims in the Court of Claims.
This trial originally had been scheduled for Tuesday, March 7, 2006, at Elmira Correctional Facility. When it was called, claimant advised that he had not been provided with his travel bag, which contained all of the papers he needed to prosecute this claim, including exhibits. He stated he complained all weekend that he needed his bag in order to prepare for trial, to no avail. The court adjourned the trial for two days, with instructions that if claimant’s bag could not be located, an employee with knowledge of the situation was to appear to explain what happened. When the case was called on March 9, claimant had been provided with his bag.
With respect to the events of August 10-30, 2000, claimant testified that although he resided at Mid-State, where he had been housed in the “honor dorm,”
at Elmira he was placed in B-Block in keeplock (i.e., cell confinement). The two trials for which claimant had been brought to Elmira occurred on August 11, 2000 and August 18, 2000, respectively. Although there was no reason for him to be at Elmira after the 18th, he was not returned to Mid-State until August 30. He testified that his conditions in keeplock were worse than those of other keeplock inmates – he only received one recreation period and four showers during his entire 20-day stay at Elmira. He stated he “constantly” requested access to the law library, medical services and “several other things,” but they never were provided.
Claimant testified that from the time he was admitted to Elmira’s B-Block on August  10, 2000,
he was not let out for recreation until August 25 at 11:05 a.m., and even then a count was taken on the block at 11:10 a.m. and an officer forced him to return to the block after only five minutes (id., 93). The next day, August 26, he was allowed one hour of recreation (id., 95), his sole recreation period during his 20-day confinement at Elmira. He asserted he constantly requested recreation throughout his stay there, during early morning count, lunch time, dinner time, several times each day, and each such time he was told “Court of Claims inmates do not get rec; you do not get rec; only PC inmates get rec.”
Claimant referred to 7 NYCRR § 304.3 – “Exercise” – which applies to Special Housing Unit inmates and requires one hour of outdoor recreation daily, except on “rare occasions” when weather conditions do not permit, or if a deprivation order has been issued upon a determination that an inmate presents a threat to safety or security.
Claimant also testified he was allowed only four showers while at Elmira – on August 15 (Exhibit “1,” 74), August 19 (id., 83), August 24 (id., 91) and August 27 (id., 96).
He also alleged he was never allowed to attend any religious services or to receive any religious counseling, in violation of Corrections Law § 610. To support this testimony, claimant asserted that were he to have been visited by a chaplain, it would have been reflected in the logbook and there was no such notation.
Claimant described his 20-day stay at Elmira as “almost total isolation.” He questioned why he was kept in Elmira for 12 days after his last court appearance on August 18, and stated he believed he was treated this way in retaliation for his having filed claims against the State in the Court of Claims.
Sgt. Michael Killacky testified for the defendant. He stated the procedure for Court of Claims inmates is that, upon arrival at Elmira, they were kept on keeplock status, pursuant to DOCS Directives 4919 and 4009, for the purpose of ascertaining whether they had any enemies in the facility. He referred to this status as “administrative hold” – a term not appearing in any regulation – and stated the directives provide that they can keep an inmate on such status for a maximum of five days, unless an extension is requested and granted. He believed the applicable period in 2000 was greater than five days, but the copies of the directives submitted by defendant contradict that assertion (Directive 4009, Exhibit “A,” effective 9/28/99; Directive 4919, Exhibit “B,” effective 12/15/98).
Sgt. Killacky also testified that inmates in keeplock for court appearances are afforded one hour’s recreation per day, but they are required to request it “when the A bell rings at 6:25 - 6:30 a.m.”
The sergeant did not recall ever speaking with claimant, and his testimony solely concerned general policy; he had no knowledge of claimant’s situation. When claimant asked him the outcome of the investigation into whether he had enemies at Elmira, he responded “I have no clue . . . I wouldn’t be the one who would look for them.” He was not aware what was done, generally, to ascertain whether an “administrative hold” inmate had enemies.
Sgt. Killacky stated the inmates housed on B-Block included general reception inmates (newly arrived for housing at Elmira), “Court of Claims inmates” (he used the same descriptive words as did the claimant), voluntary and involuntary protective custody inmates and special housing (SHU) inmates.
He agreed that Court of Claims inmates “get no privileges . .. very limited privileges, ” although he asserted they were provided the opportunity to shower three times per week.
The only aspect of Sgt. Killacky’s testimony which disagreed with that of the claimant was the sergeant’s contention that a chaplain’s visits would not necessarily be reflected in the logbook. Defendant submitted no evidence to contradict claimant’s assertions that he was confined to his cell on B-Block virtually continuously for the 20-day period, with the exception of one recreation period, four showers and two court appearances, nor was any evidence submitted to dispute that the sole reason for confinement in this manner was claimant’s status reflected in Exhibit “1”, supra, “Court of Claims KL.”
DOCS Directive 4919 (“Transportation for Court Appearances,” Exhibit “B”) provides that when an inmate is admitted to a facility for a court appearance, he is “to be placed in the standard quarantine status while staff check the [inmate’s] records and enemy situation.” While this Directive does not specify a time limit for that status, both claimant and defendant referred to Directive 4009 (“Minimum Provisions for Health and Morale,” Exhibit “A”) which requires that all inmates be provided at least one hour of outdoor recreation per day, except that:
An inmate newly arrived at a correctional facility will not be permitted out-of-cell activities until it is reasonably concluded that he/she has no known enemies at the facility. This restriction shall not exceed five (5) days unless extenuating circumstances exist and approval is granted by the Deputy Commissioner for Correctional Facilities or his designee (id., G 3).

Here, the evidence indicates that claimant was allowed only one hour of recreation over his entire 20-day confinement, a clear violation of the directives. Moreover, defendant’s contention that the first five days of his confinement was privileged and therefore only the last 15 days should be considered when awarding damages is incorrect. The procedure set forth in the directives contemplates that the inmate is confined without “out-of-cell” activities pending an investigation into the enemy situation, and that such an investigation shall take no more than five days. The record herein does not establish that an investigation ever was undertaken.
Directive 4009 also provides that inmates are to be permitted to shower “at least three (3) times per week,” which would be eight or nine showers over claimant’s 20-day confinement, not the four he was allowed (id., G 1).
Directive 4009 further provides that inmates are to be afforded pastoral visiting opportunities upon request, another of the “minimum provisions” defendant failed to provide to claimant.
Similarly, the court credits claimant’s testimony that he was not afforded access to law library materials to which he was entitled (see 7 NYCRR §304.7).
The court has no way of knowing whether claimant was correct in asserting that the treatment to which he was subjected at Elmira was intended to “harass” him for bringing claims in the Court of Claims, or whether the general policy of confining what Sgt. Killacky and the logbook (Exhibit “1,” supra) referred to as “Court of Claims inmates” or “Court of Claims KL” was the result of such an alleged motivation. Similarly, the court cannot state that the failure to provide claimant with his litigation travel bag prior to his trial, and the failure even to locate it until prodded by the court (not directly relevant to the court’s assessment of liability or damages herein), was intended to harass claimant – although in this court’s recent experience there seems to be a number of disturbing instances at Elmira of not providing claimants with their litigation materials when they are transported from another correctional facility for Court of Claims trials. Nevertheless, the court finds there was no justification for the treatment of claimant that was demonstrated at this trial, specifically the deprivation of privileges to which he was entitled while he was in keeplock awaiting his two trials and which continued for 12 days after his trials had been concluded, and that claimant therefore is entitled to recover for this wrongful deprivation (see Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl, King, J., 1997]; Gittens v State of New York, 132 Misc 2d 399 [Ct Cl, Corbett, J., 1986]; cf. Wilkinson v Skinner, 34 NY2d 53 [1974]).
In its post-trial memorandum, defendant erroneously asserted that the length and conditions of claimant’s confinement was “consistent with the State’s rules and regulations,” citing Arteaga v State of New York (72 NY2d 212 [1988]), a decision inapposite to the situation described at trial.
Defendant also argues that claimant is entitled to damages of “at most, $10.00 per day” based on its citation of a number of cases involving disciplinary proceedings where the defendant either confined an inmate without affording the applicable due process protections (see, 7 NYCRR 251-5.1; 7 NYCRR parts 252-254) or failed to release an inmate from keeplock or special housing when he should have been released after punitive confinement. The court is not impressed with defendant’s contention that damages in such cases are necessarily limited to this amount. Claimant’s confinement here without privileges had nothing to do with discipline or allegations of wrongdoing. Cases arising out of the disciplinary process are irrelevant to the situation described herein, and, in any event, awards of damages are dependent on the circumstances of each case (see e.g. Perez v State of New York [Ct Cl, Sise, J., Claim No. 99839, February 14, 2001, UID No. 2001-028-0005], awarding damages of $25 per day for the failure to release the claimant from special housing when his term expired, a case not cited by defendant in support of its contention that there is some sort of “$10 per day” rule).
The court finds that the sum of $500 constitutes adequate and just compensation for claimant’s wrongful excessive confinement, and the Clerk of the Court is directed to enter judgment in his favor for said amount, and providing that claimant may recover any filing fee actually paid.

June 21, 2006
New York, New York

Judge of the Court of Claims

[1].Unless otherwise indicated, all quotations are from the court’s trial notes.
[2].The B-Block logbook (Exhibit “1”) shows that on August 10, 2000, at 2:15 p.m., two inmates were admitted to the block, “both Court of Claims KL until they leave” (id., 63).
[3].Inmates transported to Elmira for court appearances in other than Court of Claims cases (i.e., for criminal trials) were kept in general population. The sergeant advised that the reason for the distinction between Court of Claims inmates and inmates there for trials in other courts is that Court of Claims inmates are “ordinarily only there for a couple of days.”
[4].Arteaga concerned immunity for decisions made in the disciplinary process, which was not at issue herein. Indeed, the Arteaga court stated that while correctional facility officials have absolute immunity against suits for wrongful confinement when an inmate is confined after a hearing at which the applicable procedures are followed notwithstanding subsequent reversal of the conviction, “actions of correction personnel in physically abusing inmates (see, Correction Law § 137 [5]) or in confining them without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; 7 NYCRR parts 252-254) would not receive immunity” (72 NY2d 212, 221).