“30 days keeplock, 15 days deferred for 30 days and 15 revoked; and the
keeplock was from 11/2 to 11/17; and the 15 days revoked was from 11-17 to
12-2-04. So, from 11/2 to 12/2 was 30 days. Then the 10 days overlapped: from
11/5 to 11/15. In totality, however, . . . [he] had been keeplocked from 11/2 to
12/16 - 44 days instead of the 40 . . . [he] should have served.”
When he tried to “get out” as his disposition indicated on December
12, he was “told no”, and kept an additional four (4) days. First he
was told he “would get out the 15th, but then . . . [he] was not released
After reviewing the two disciplinary hearing dispositions completed by the
respective lieutenants without knowledge of the pendency of the two disciplinary
proceedings, the court notes that it appears that Lieutenant Gorsch, who was
addressing charges of refusing a direct order and “out of place” did
not note that the claimant had been keeplocked since November 2, 2004; while
Lieutenant Russett did based upon the “start dates” for keeplock
noted on the disposition report. [See Exhibit 1].
Claimant filed a grievance, which was accepted in part. [Exhibits 1, 2 and A].
The Inmate Grievance Resolution Committee concluded that the disciplinary
sanctions were miscalculated, and while he should have been released on December
12, 2004, he was not released until December 16, 2004. [Ibid.]. They
suggested he apply to the Court of Claims for relief. [Exhibits 2 and A].
Somewhat inexplicably, back pay for one (1) day was granted in the amount of
$.45 in the Superintendent’s decision. [Exhibit A]. In a memorandum dated
January 20, 2005 from Lieutenant Russett to claimant - a memorandum referred to
by the Superintendent’s decision granting the back pay - the officer
writes: “You ended up doing three (3) days pre-hearing keeplock and stayed
confined an extra day as well as the forty days of the assigned
disposition.” [Exhibits 1 and A].
Claimant testified that he seeks “$2,500.00 in damages”, based upon
the deprivation of liberty, as well as the fact that having found that he was
held wrongfully, he should have been compensated accordingly. He thought it
should not have taken filing a grievance for the facility to acknowledge their
On cross-examination Mr. Pratt agreed that the Superintendent’s decision
reflects a final facility determination that claimant had been confined for one
(1) extra day rather than four (4) days.
Mr. Pratt also pointed out, however, that the pre-hearing detention was not
dealt with in the final calculation. He said he “gave them a chance to
correct” one error - by telling them he was “supposed to be out on
December 12, 2004” - they then “told . . . [him he] could get out
December 15, but then kept . . . [him] in until December 16, 2004, which was
still wrong.” This appears to be borne out by the investigative reports
for the IGRC dated December 27, 2004, wherein it is indicated that claimant
should have been credited with three (3) days keeplock. [Exhibit A].
No other witnesses testified and no other evidence was submitted.
To establish a prima facie case of wrongful confinement, a
“species” of the tort of false imprisonment, [Gittens v State of
New York, 132 Misc 2d 399, 407 (Ct Claims 1986)], a claimant must show
“. . . (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) cert
denied sub nom. Schanbarger v Kellogg, 423 US 929.
The quasi-judicial acts of correction employees taken in furtherance of
authorized disciplinary measures are entitled to absolute immunity. Arteaga v
State of New York, 72 NY2d 212, 219-220 (1988). If officers act
inconsistently with their own rules and regulations, or otherwise act outside
the sphere of privileged actions, however, liability may attach.
Claimant presented as a credible witness and has satisfied his burden of
establishing at least a portion of his claim by a preponderance of the evidence.
With respect to his cause of action for wrongful confinement, claimant has
established that through errors that were not his own the facility failed to
calculate the period of his confinement with regard to the expiration of his two
disciplinary sentences in violation of facility rules. [See
7 NYCRR §253.7]. With respect to pre-hearing detention,
however, although he was subject to same, there is no violation of rules and
regulations when the facility does not credit pre-hearing
against a disciplinary sentence
ultimately imposed. See Matter of Melluzzo v Goord
, 250 AD2d 893,
895 (3d Dept 1998), lv denied
92 NY2d 914 (1998). Such determination
would constitute discretionary immunized conduct under the principles of
Arteaga v State of New York
Accordingly, the Court finds that claimant is entitled to compensation for one
(1) day of wrongful confinement, and that the amount of $20.00 per day for a
total of $20.00 in damages adequately compensates him for the loss. Pursuant to
Court of Claims Act §11-a(2) Claimant is entitled to receive in addition
the amount of any filing fee paid.
Let Judgment be entered accordingly.