New York State Court of Claims

New York State Court of Claims

GAGNE v. THE STATE OF NEW YORK, #2006-044-007, Claim No. 108815


State liable for wrongful confinement of inmate where no hearing was held within seven days of confinement, as required by regulation, and no delay was authorized. Claimant awarded $290 in damages

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: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 14, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, alleges that defendant State of New York (“defendant”) violated his rights under the New York State Constitution, Article I, §§ 5, 6, 8, 9 and 11; and also alleges “the intentional, wrongful acts, and the negligent actions the States agents, officers and employees committed while acting under color of State law”.[1] Claimant states three specific causes of action:

1) defendant's employees filed false misbehavior reports against him in retaliation for his filing of grievance complaints against them;

2) defendant's employees violated his due process rights by conducting an illegal hearing; and

3) defendant's employees deprived him of his liberty and privileges for the sole purpose of intentionally causing him to suffer anxiety, stress and mental anguish.

Trial of this matter was held at Elmira Correctional Facility on October 25, 2006.

At trial, claimant voluntarily withdrew all claims except that for wrongful confinement due to the unauthorized delay of a Tier III disciplinary hearing, in violation of Department of Correctional Services (“DOCS”) regulations.[2]

Claimant testified that he was confined to keeplock on October 13, 2003 due to a misbehavior report written on that date. Claimant asked for and received assistance in preparing for this hearing, and the hearing commenced on October 20, 2003. Claimant objected to conducting the hearing at that point on the grounds that it was untimely. A DOCS regulation (7 NYCRR 251-5.1) provides in pertinent part:
(a) Where an inmate is confined pending a disciplinary hearing or superintendent's hearing, the hearing must be commenced as soon as is reasonably practicable following the inmate's initial confinement pending said disciplinary hearing or superintendent's hearing, but, in no event may it be commenced beyond seven days of said confinement without authorization of the commissioner or his designee.

(b) The disciplinary hearing or superintendent's hearing must be completed within 14 days following the writing of the misbehavior report unless otherwise authorized by the commissioner or his designee. Where a delay is authorized, the record of the hearing should reflect the reasons for any delay or adjournment, and an inmate should ordinarily be made aware of these reasons unless to do so would jeopardize institutional safety or correctional goals.

Correction Officer Pocobello was the assigned hearing officer. Claimant testified that he had filed a number of grievances against Pocobello prior to this incident. Pocobello confirmed this in his testimony. Pocobello further testified that the hearing did indeed commence on October 20, 2003, eight days after the commencement of claimant's confinement, when including the initial day of confinement. He testified that he believed there had been an extension duly granted authorizing the delay prior to the expiration of the seven-day period on October 19, 2003. However, the hearing record submitted at trial contained no documentation of such an authorization, as is required under 7 NYCRR 251.5-1(b). Moreover, Pocobello did not recall who had requested the extension, or when it was requested.

The hearing was adjourned on October 20, 2003 to October 27, 2003, then repeatedly adjourned for a variety of reasons to successive dates of October 29, 2003, October 31, 2003, November 3, 2003 and November 5, 2003. Each of these subsequent adjournments was properly authorized. On November 5, 2003, Pocobello again requested an extension, this time to November 12, 2003. On November 10, 2003, Pocobello was advised that no extension had been granted past November 5, 2003 due to a clerical error, and that the charges against claimant must be dismissed as untimely.

Pocobello testified that he immediately ordered claimant released from keeplock on November 10, 2003. Although claimant could not testify at trial regarding the exact date of his release from keeplock,[3] his claim asserts that the cause of action accrued on November 17, 2003.[4] That date is 36 days after the commencement of his confinement on October 13, 2003.

Although defendant relied on Arteaga v State of New York (72 NY2d 212 [1988]) at trial, that reliance is misplaced. While Arteaga provides immunity for disciplinary decisions and actions by correction officers that are discretionary or quasi-judicial in nature, it does not shield actions that are in violation of specific rules and regulations (Plair v State of New York, Ct Cl, Sept. 28, 2000, Mignano, J., Claim No. 95693 [UID # 2000-029-023]).

Claimant's testimony, which was supported by the testimony of Pocobello, is that the initial hearing was held eight days after his confinement pending the hearing. Defendant has failed to establish that the delay in holding the initial hearing beyond October 19, 2003 was “authorized” under 7 NYCRR 251.5-1 (b). Thus the Court finds defendant liable for wrongful confinement. However, this liability extends only insofar as claimant was held beyond that time period (seven days) authorized by the applicable rules and regulations (id).

Claimant is therefore awarded $10.00 per day for 29 days of wrongful confinement, for a total of $290.00, as reasonable and fair compensation (see Minieri v State of New York, 204 AD2d 982 [1994]).

To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

Any and all motions on which the court may have previously reserved or which were not previously determined, are hereby denied.

Let judgment be entered accordingly.

November 14, 2006
Binghamton, New York

Judge of the Court of Claims

[1]. Claim, ¶ 4.
[2]. To the extent that claimant had previously been asserting a civil rights action, this Court does not have jurisdiction (Brown v State of New York, 89 NY2d 172 [1996]). To the extent that claimant had been asserting a cause of action for violations of the State Constitution, that would also be without merit, due to the availability to claimant of alternate remedies (see Martinez v City of Schenectady, 97 NY2d 78 [2001]).
[3]. Coincidentally, defendant misplaced claimant’s legal bag when he was transported to Elmira for trial.
[4]. Claim, ¶ 2.