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
and filed an inmate grievance on
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
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
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
and “[o]n 9-2-04 Inmate
Morales was moved back to PC by Captain
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 #
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
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 ), 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).
LET JUDGMENT BE ENTERED ACCORDINGLY.