LAMAGE v. STATE OF NEW YORK, #2007-015-552, Claim No. 109310
Two of the claimant's three causes of action for wrongful confinement were
dismissed after trial. Hearing Officer's denial of claimant's request to call
witness at a disciplinary hearing was discretionary and decision was properly
based on witness' lack of personal knowledge of the facts. Wrongful confinement
claim based on the failure to provide an employee assistant was also dismissed
as the evidence established that the claimant was given the opportunity to have
an employee assistant. Third claim for wrongful confinement was granted where
claimant was confined for 8 days without being provided a misbehavior report or
a timely hearing. Claim for negligent supervision arising out of alleged
assault by fellow inmate was dismissed as claimant failed to establish
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Edwin Lamage, Pro Se
Honorable Andrew M. Cuomo, Attorney General
EsquireAssistant Attorney General
May 10, 2007
See also (multicaptioned
Claimant alleges three causes of action for wrongful confinement and one cause
of action for negligence in failing to prevent an assault. These claims
proceeded to trial on February 21, 2007.
The first cause of action is for 20 days' wrongful confinement arising from the
determination of correction employees at Great Meadow Correctional Facility
that involuntary protective custody was necessary for the protection of the
claimant and the safety and security of other inmates and staff. The
confinement commenced on March 31, 2004 following a letter written by the
claimant on March 29, 2004 to the Superintendent at Great Meadow (Exhibit A).
In the letter the claimant identified another inmate who had threatened to cut
him with a knife and attempted to extort money from him. The threat and
extortion attempt were in writing, a copy of which was enclosed with the
claimant's letter to the Superintendent. The claimant was interviewed by
Correction Officer Feola on March 31, 2004 with respect to the letter.
Following the interview, Correction Officer Feola completed a report (Exhibit 2)
in which involuntary protective custody was recommended. Correction Officer
Feola noted in the report that during the interview the claimant not only
confirmed the threats which had been made against him, but also the fact that he
had attempted to engage in a homosexual affair with the inmate who threatened
him. The report ( Exhibit 2) goes on to state the following:
[The claimant] went on to say his entire company, D-2, is aware that he intends
to inform the administration here of [the other inmate's] behavior, as well as
his willingness to turn over documents that confirm his concerns. I call them
concerns as he does not seem to be in fear even though he well should be. He
does not understand the danger he puts himself in with this type of cooperation
The claimant was served with a copy of the report in which the recommendation
for involuntary protective custody had been made and a hearing was commenced on
April 13, 2004 in which Hearing Officer Potter presided. Hearing Officer Potter
testified at trial that on April 13, 2004 authorization was obtained for an
extension of the date for the completion of the hearing to April 19, 2004 in
order to allow for the testimony of Correction Officer Feola, a witness who had
been requested by the claimant to testify on his behalf. The extension was
authorized in writing and was admitted into evidence as Exhibit 4. Hearing
Officer Potter testified that claimant's request for certain witnesses had been
denied because they had no direct knowledge of the events which led to the need
for protective custody. Hearing Officer Potter identified the Witness Interview
Notice (Exhibit 3) in which claimant's request for permission to call the
following witnesses was denied: Sergeant Michael, Deputy Superintendent of
Security Vanguilder, and Superintendent Greene. Hearing Officer Potter
testified that all three of these witnesses had no direct knowledge of the
incident. As indicated in Exhibit 3, Superintendent Greene's involvement was
limited to the receipt of the letter from the claimant; Deputy Superintendent
of Security Vanguilder's involvement was limited to the recommendation for an
investigation of the need for involuntary protective custody; and Sergeant
Michael had no involvement with the events relating to the investigation or the
recommendation for protective custody made by Correction Officer Feola.
Hearing Officer Potter testified that although the claimant had signed a waiver
of protective custody, upon consideration of the claimant's letter relaying the
threats which had been made against him protective custody was determined to be
necessary for the protection of both inmates and staff (see also
Involuntary Protective Custody Hearing Determination [Exhibit 5]).
The second cause of action is for the alleged negligence of correction
employees in failing to prevent an assault on the claimant which occurred on
February 13, 2004 at Clinton Correctional Facility, E-Block. The incident
occurred when another inmate cut the claimant's hand with a sharp object as he
was passing by the claimant's cell on the way back from the recreation yard.
Sergeant Rendle testified at trial that he is a Supervisor at Clinton
Correctional Facility and investigated the incident. He testified that
E-Block has its own recreation yard and that there are various recreation times
throughout the day. There are seven companies on E-Block and when one company
goes in or out to the yard, all other inmates are locked in their cells.
Companies move in and out to the recreation yard under the supervision of
correction officers whose visibility of the corridor through which the inmates
pass is unobstructed. The results of Correction Officer Rendle's investigation
are reflected in his report received in evidence as Exhibit B. The report
indicates that the claimant informed Correction Officer LaBounty that another
inmate cut him on the hand as the other inmate was returning from recreation.
The claimant was taken to the hospital and treated for superficial cuts on his
hand. The report states that the alleged assailant admitted that the claimant
had been making sexual advances to him but that he did not admit to "cuffing"
him. Thereafter, the alleged assailant was placed on the claimant's inmate
enemy list which was entered into evidence as Exhibit C.
The third cause of action is for 111 days' wrongful confinement from November
25, 2003 to March 14, 2004 at Clinton Correctional Facility. Following a Tier
III hearing on December 1, 2003 the claimant was found guilty of fighting and
Hearing Officer Drown imposed 90 days' confinement in the Special Housing Unit
with 21 days of keeplock. This determination was affirmed on appeal to the
Commissioner. Claimant alleges that the defendant failed to provide an employee
assistant to aid him in the defense of this charge and that Hearing Officer
Drown did not conduct the hearing in a fair and impartial manner. Hearing
Officer Drown testified at trial and the transcript of the hearing was admitted
into evidence as Exhibit 22. Hearing Officer Drown testified that the claimant
refused an employee assistant, a fact which is indicated on the Assistant Form
entered into evidence at trial as Exhibit 19. On this form, Correction
Officer Hanley indicated that claimant "[r]efused me to be his [tier] Assistant
10:20 [a.m.]. After asking for things, [t]hen he changes his mind". At the
hearing, the claimant placed an objection on the record to the fact that he had
not been provided with an employee assistant and refused to enter a plea to the
charge made against him. Hearing Officer Drown entered a plea of not guilty on
behalf of the claimant and read into the record the section of the Assistant
Form which indicated that the claimant had declined the assistance of an
employee assistant. Hearing Officer Drown asked the claimant if he denied that
he had been seen by an employee assistant to which the claimant responded "I
asked for general law" (see Exhibit 22, p.4). Hearing Officer Drown
then attempted unsuccessfully to ascertain the nature of the assistance the
claimant required which elicited only an objection from the claimant (see
Exhibit 22, p. 5-7). Claimant's fourth cause of action is for eight days'
wrongful confinement to his cell ("keeplock") at Auburn Correctional Facility
beginning January 14, 2003. In support of this claim, claimant alleges that a
misbehavior report was never issued nor was he provided a hearing. Claimant
filed a grievance on February 20, 2003 (Exhibit 24). The response to this
grievance indicates that the claimant had been issued a "ticket" before he was
transferred from Southport Correctional Facility to Auburn Correctional
Facility. Once the paperwork was received at Auburn eight days following
claimant's transfer, the claimant was released from confinement (see Exhibit
The Causes Of Action For Wrongful Confinement
In order to establish a prima facie case of wrongful confinement, a
claimant must show that "(1) the defendant intended to confine him, (2) the
[claimant] was conscious of the confinement, (3) the [claimant] did not consent
to the confinement and (4) the confinement was not otherwise privileged..."
(Broughton v State of New York, 37 NY2d 451, 456 ). Claimant's
ability to recover in this case turns on whether or not the various confinements
It is well-settled that the actions of correctional facility employees taken
in furtherance of authorized disciplinary measures are quasi-judicial in nature
and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d
212 ). As stated by the Court of Appeals in Arteaga (at 220),
important policy reasons underlie the application of absolute immunity for the
conduct of correction employees:
Because of the unquestioned risks to inmates, employees, and the public from a
breakdown in order and discipline in correctional facilities . . . , it is
particularly important that correction officers not be dissuaded by the
possibility of litigation from making the difficult decisions which their duties
demand. Nor should correction personnel acting as reviewing officers feel
reluctant to reverse hearing determinations because doing so might expose the
State to liability.
The Arteaga Court was careful to point out, however, that giving full
immunity to the conduct of correction employees will not deprive inmates of
their right to recover damages for "unlawful actions of employees taken beyond
their authority or in violation of the governing rules and regulation"
(id. at 220; see also Holloway v State of New York, 285
AD2d 765, 766 ; Mitchell v State of New York, 32 AD3d 594 ).
Thus, the Arteaga Court made clear that the State is not immune from
liability for "actions of correction personnel in physically abusing inmates
(see, Correction Law § 137 ) or in confining them without
granting a hearing or other required due process safeguard (see, 7 NYCRR
251-5.1; parts 252-254)..." (id. at 221). Where the regulation permits
the exercise of discretion, however, immunity attaches even though it may be
later determined that such discretion was abused (Holloway v State of New
York, 285 AD2d at 766).
In support of his first cause of action, claimant alleges that he was deprived
of his right to call witnesses on his behalf and that the hearing was not
completed in a timely manner.
With respect to the claimant's right to call witnesses on his own behalf, 7
NYCRR § 253.5 (a) states:
The inmate may call witnesses on his behalf provided their testimony is
material, is not redundant, and in doing so does not jeopardize institutional
safety or correctional goals. If permission to call a witness is denied, the
hearing officer shall give the inmate a written statement stating the reasons
for the denial, including the specific threat to institutional safety or
correctional goals presented.
The plain language of the regulation permits the exercise of discretion in
determining whether to grant a claimant's request to call witnesses. A written
statement of the reasons for denying the request for witnesses was provided to
the claimant. None of the requested witnesses, Sergeant Michael, Deputy
Superintendent of Security Vanguilder and Superintendent Greene, had direct
knowledge of the events which led to the involuntary protective custody hearing.
The denial of claimant's request to call these witnesses at his disciplinary
hearing was clearly an exercise of discretion within the authority of
correctional facility employees and, as such, provides no basis for a wrongful
Likewise, with respect to the claim that the hearing was not completed in a
timely manner in violation of § 251-5.1 (b), the Court notes that an
extension for the completion of the hearing was obtained on April 13, 2004.
Section 251-5.1 (b) provides for the completion of a hearing within 14 days of
the issuance of a misbehavior report "unless otherwise authorized by the
commissioner or his designee". Such authorization was obtained in this case.
As a result, the alleged untimely completion of the hearing provides no basis
for claimant's first cause of action for wrongful confinement and this cause of
action is therefore dismissed.
Claimant's third cause of action for wrongful confinement is based on the
alleged violation of a regulation which provides the claimant an "opportunity"
for the assignment of an employee assistant (7 NYCRR § 251-4.1). The
trial testimony of Hearing Officer Drown together with the transcript of the
testimony at the hearing (Exhibit 22) and Correction Officer Hanley's notation
on the Assistant Form (Exhibit 19) make clear that the claimant refused the
assistance of an employee in the defense of the disciplinary charge against him.
In addition, the transcript of the hearing clearly reflects Hearing Officer
Drown's attempt to ascertain from the claimant the nature of the assistance he
required and the claimant's refusal to provide this information. On these
facts, the Court finds that no violation of the regulation occurred. The
claimant's third cause of action is dismissed.
A different conclusion is reached with respect to the claimant's fourth cause
of action for eight days' wrongful confinement. The claimant established that
he was held in keeplock status for eight days upon his arrival at Auburn
Correctional Facility. No misbehavior report was provided and no hearing was
held within the time limitations set forth in 7 NYCRR § 251-5.1 (a). While
the defendant is immune from liability for discretionary acts which are
quasi-judicial in nature, this immunity does not shield the defendant from
liability for conduct which is in violation of specific rules and regulations
(see Arteaga v State of New York
; Gagne v State
of New York
, Ct Cl, November 14, 2006 [Claim No. 108815, UID # 2006-044-007]
Schaewe, J., unreported)
. Claimant is
therefore awarded $10.00 per day for eight days of wrongful confinement, for a
total of $80.00, as reasonable and fair compensation (see Gagne v
State of New York, supra
The Second Cause Of Action For Negligent Supervision
It is well-settled that the State owes a duty of care to safeguard inmates from
attacks by other inmates (Sanchez v State of New York, 99 NY2d 247, 252
). That duty, however, does not render the State an insurer of inmate
safety and liability may only be predicated upon a showing that the defendant
knew or should have known of the risk of harm to the inmate (id. at 254;
Sanchez v State of New York, 36 AD3d 1065 ; Di Donato v State of
New York, 25 AD3d 944 ; Elnandes v State of New York, 11 AD3d
828 ). Here, the claimant offered no evidence to establish that the
defendant knew or should have known that the claimant was in danger or that an
assault was likely to occur. "Absent a showing of dangerousness, 'unremitting
supervision' is unnecessary" (Sanchez v State of New York, 36 AD3d at
1067, quoting Colon v State of New York, 209 AD2d 842, 844 ).
Accordingly, the claimant's second cause of action is dismissed.
Based on the foregoing, the claimant's first, second and third causes of action
are dismissed. Claimant is awarded $10.00 per day for eight days of wrongful
confinement on his fourth cause of action, for a total award of $80.00.
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 determined, are hereby denied.
Let judgment be entered accordingly.
May 10, 2007
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
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