New York State Court of Claims

New York State Court of Claims

MORALES v. THE STATE OF NEW YORK, #2006-044-008, Claim No. 110298


Claimant, an inmate proceeding pro se, alleges that he was wrongfully confined in involuntary protective custody (“IPC”) without a hearing at Elmira Correctional Facility (“Elmira”) from September 2, 2004 through October 22, 2004. Claimant contends that while he was in IPC, he was denied access to mental health services, and was issued misbehavior reports in retaliation for complaining of his illegal confinement.[1] A trial of the matter was held at Elmira on November 16, 2006.

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: Geoffrey B. Rossi, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 19, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


On June 22, 2004, claimant was moved from IPC into the facility's intensive care program (“Intensive Care”), a program which claimant described at trial as being for “mentally challenged individuals”. Inmates in Intensive Care were incarcerated separately from the general population. Claimant later requested removal from Intensive Care. He was removed from Intensive Care on September 1, 2004 and put in general population. At the time he was removed from Intensive Care, claimant was under keeplock status, having committed various disciplinary infractions. The keeplock status was supposed to expire September 10, 2004.

On September 2, 2004, claimant was removed from general population and returned to IPC. Captain Wenderlich (a Correction Captain and at that time Acting Deputy Superintendent of Security), who testified at trial on behalf of defendant, stated that he made the decision to remove claimant from general population because claimant was a disciplinary problem who belonged in IPC. Captain Wenderlich also testified that those inmates being held in protective custody are segregated in a separate location within the prison.

It is undisputed that claimant was held in IPC without a hearing until October 22, 2004. While in IPC, claimant made several complaints regarding being held without a hearing, both to prison officials and to various prisoner assistance agencies,[2] and filed an inmate grievance on that issue.[3] Claimant was returned to general population on October 22, 2004, after prison officials “determined that there was no reason to recommend Inmate Morales for IPC status.”[4]

Department of Correctional Services (“DOCS”) regulation 7 NYCRR 330.3 (b) provides in pertinent part: “(b) Involuntary protective custody inmate. (1) An inmate in this status shall have a hearing, conducted within 14 days in accordance with the provisions of Part 254 of this Title, to determine the need for protective custody admission.” Defendant contends that it did not violate this regulation.

Captain Wenderlich testified that claimant's keeplock status overrides any “privileges, rights or procedures.”[5] He stated that because claimant was keeplocked until September 10, 2004, that was the date which would commence the 14-day “clock”. He further testified that claimant was placed back in keeplock status on September 22, 2004, due to another disciplinary violation, and that the length of the keeplock penalty was 30 days, thus coincidentally expiring on the same date claimant was removed from IPC. Captain Wenderlich stated that claimant was therefore held in IPC without a hearing for only 11 days (September 11 through September 21, 2004) and that claimant was therefore not wrongfully confined without a hearing longer than permitted by DOCS regulations.

The Court disagrees with Captain Wenderlich's analysis. The keeplock penalty and concomitant denial of privileges certainly applies wherever an inmate is being held, whether in general population, Special Housing Unit, or protective custody. However, it is claimant's actual physical location within the protective custody area of the prison that clearly commences the time within which defendant must hold a hearing. The fact that claimant was transferred to IPC is confirmed in several places within defendant's documentation, which states: “the Captain moved the grievant back in to protective custody on 9/2/04,”[6] and “[o]n 9-2-04 Inmate Morales was moved back to PC by Captain Wenderlich.”[7]

Prison officials are well aware that the location of an inmate in certain types of housing has certain implications and possible consequences for that inmate. For example, one implication of being confined in protective custody is that the other denizens of the prison may perceive that inmate as being a “snitch”. This can certainly have a deleterious effect on the inmate's health and well-being.

Defendant's relocation of claimant to the protective custody area of the prison on September 2, 2004 commenced the 14 days within which the hearing on protective custody status was required to be held. Claimant's keeplock status, whether from September 2 through September 10, 2004, or from September 22 through October 22, 2004, is irrelevant to the non-discretionary requirement that the hearing be held within 14 days. The Court finds that claimant was wrongfully confined for a period of 37 days beyond the 14-day period within which defendant was required to hold a hearing.

Further, this court does not have jurisdiction over claims of retaliatory misbehavior reports (Zulu v State of New York, Ct Cl, May 21, 2001, Patti, J., Claim Nos. 96973 and 96974, Motion Nos. M-63183 and M-63184 [UID # 2001-013-006]). “The proper venues for so-called retaliation claims are the inmate grievance procedure and Article 78 proceedings, not the Court of Claims” (Johnson v State of New York, Ct Cl, Oct. 27, 2003, Lebous, J., Claim No. 107621, Motion No. M-67430, Cross Motion No. CM-67474 [UID # 2003-019-565]).

Claimant's uncontroverted testimony that he was denied access to mental health services while in IPC is relevant to the question of damages, however. Claimant stated that at the time in question, he was taking medication (Tegretol and Welbutrin) and was also receiving treatment for mental health problems. While in IPC, claimant repeatedly requested mental health services. However, except for one visit at the very beginning of his stay in IPC, during which his medications were adjusted, those services were denied. Claimant testified that he became more and more agitated throughout his time in IPC, and had difficulty with anger management, impulse control, and sleeping. Defendant provided no testimony or evidence to contradict claimant's statements that his mental health issues were exacerbated by the denial of mental health services while he was in IPC.

Accordingly, while damages for wrongful confinement are often set at $10.00 per day (see e.g. Minieri v State of New York, 204 AD2d 982 [1994]), the Court finds that claimant's wrongful confinement in IPC without a hearing exacerbated claimant's mental health issues. The Court awards claimant $25.00 per day, or $925.00, without interest, as fair and reasonable compensation.

Any and all motions on which the court may have previously reserved or which were not previously determined, are hereby denied. Finally, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).


December 19, 2006
Binghamton, New York

Judge of the Court of Claims

[1]. Claim, ¶ 13.
[2]. Claimant's Exhibits 4, 5 and 6.
[3]. Claimant's Exhibit 6.
[4]. Grievance Program Investigative Report dated 10-20-04, submitted as part of Claimant's Exhibit 6.
[5]. Quote taken from the Court's trial notes.
[6]. Grievance Program Central Office Review Committee's report, submitted as part of Claimant's Exhibit 6.
[7]. Grievance Program Investigative Report dated 10-26-04, submitted as part of Claimant's Exhibit 6.