New York State Court of Claims

New York State Court of Claims

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 notice.

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:
Edwin Lamage, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 10, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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 with staff.

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 24).

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 [1975]). Claimant's ability to recover in this case turns on whether or not the various confinements were privileged.

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 [1988]). 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 [2001]; Mitchell v State of New York, 32 AD3d 594 [2006]). 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 [5]) 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 confinement claim.

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, supra; Gagne v State of New York, Ct Cl, November 14, 2006 [Claim No. 108815, UID # 2006-044-007] Schaewe, J., unreported)[1]. 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 [2002]). 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 [2007]; Di Donato v State of New York, 25 AD3d 944 [2006]; Elnandes v State of New York, 11 AD3d 828 [2004]). 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 [1994]). 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
Saratoga Springs, New York

Judge of the Court of Claims

[1]. Unreported decisions from the Court of Claims are available via the internet at