New York State Court of Claims

New York State Court of Claims
PENA v. THE STATE OF NEW YORK, # 2008-040-031, Claim No. 110183


Trial - Claim dismissed in part. Failure of proof that Claimant was issued a false misbehavior report and improperly confined to SHU. However, Claimant established he was not timely released from SHU - held 5 days too long. Awarded $15 per day.

Case information

UID: 2008-040-031
Claimant(s): OSCAR PENA #03R0673
Claimant short name: PENA
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 110183
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Oscar Pena, Pro Se
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
By: Paul F. Cagino, Esq., AAG
Third-party defendant's attorney:
Signature date: May 20, 2008
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Pro se Claimant, Oscar Pena, has failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with the portion of his Claim which asserts he was issued a false misbehavior report and improperly sanctioned with confinement in the Special Housing Unit ("SHU"). However, Claimant has established by a preponderance of the credible evidence that he was held in SHU five days past the date upon which he should have been released after the determination at his disciplinary hearing was reversed on administrative appeal. The trial of this matter was held at the Court of Claims in Albany, New York on April 1, 2008.

Claimant testified that in 2004 he was incarcerated at Camp Gabriels Correctional Facility in Gabriels, New York ("Camp Gabriels"). He stated that he made a request for a Hardship Transfer so he could be closer to his ailing mother. When his request was denied, he filed three grievances to complain. Two of the grievances, dated July 29, 2004 and August 1, 2004, respectively, are contained in Exhibit B. Claimant stated he was improperly issued a Misbehavior Report (see Ex. B) on August 3, 2004 in retaliation for filing the grievances. He was found guilty of the charge of making threats at a disciplinary hearing held on August 9, 2004 (see Ex. B) and was placed in SHU at Clinton Correctional Facility in Dannemora, New York and Upstate Correctional Facility in Malone, New York for a total of 63 days.

Claimant's uncontroverted testimony was that the disciplinary hearing determination was reversed on administrative appeal on September 29, 2004 by Donald Selsky, Director of Special Housing/Inmate Discipline (see Ex. B) and that he should have been released from SHU on that date. Instead, he was not released until October 4, 2004 when he was transferred to Franklin Correctional Facility in Malone, New York.

On cross-examination, Claimant agreed that the New York State Department of Correctional Services ("DOCS") does not have to grant an inmate's request to be transferred. The determination is a discretionary one made by DOCS. He stated that Camp Gabriels is an open facility. There are no fences or gates, and an inmate can just walk out.

Claimant also testified that his August 1, 2004 grievance was written in an attempt to get a transfer closer to his mother.

The State called James Zuliani as a witness. Mr. Zuliani is a retired DOCS employee. In 2004, he was a counselor at Camp Gabriels. He described Camp Gabriels as a minimum security prison which resembles a college campus, without gates or fences. Mr. Zuliani testified that any discussion of escape by an inmate at Camp Gabriels is taken very seriously. The witness wrote the Misbehavior Report (see Ex. B) dated August 3, 2004 because of the language contained in Claimant's August 1, 2004 grievance (see Ex. B), wherein Claimant stated that he was being baited and provoked to escape by the administration at Camp Gabriels.

On redirect examination, Mr. Zuliani stated he believed that Claimant's August 1, 2004 grievance was an implied threat to escape. He stated he issued Claimant the Misbehavior Report because of the implied threat, not because Claimant filed a grievance.

In Arteaga v State of New York (72 NY2d 212 [1988]), the Court of Appeals held that the State had absolute immunity from liability in the area of prison discipline when its employees act under the authority of and in full compliance with the statutes and regulations, and their actions constitute discretionary conduct of a quasi-judicial nature. Here, the State followed the rules and regulations by issuing a misbehavior report, confining the Claimant to his cell and holding a timely disciplinary hearing. At the hearing, a quasi-judicial determination was made to confine Claimant to SHU. This is the activity of prison officials which was given absolute immunity by Arteaga even though the determination was reversed on administrative appeal.

Arteaga, however, does not apply to the time period Claimant continued to be confined in SHU after Mr. Selsky reversed the hearing officer's determination. No discretion or independent judgment of a quasi-judicial nature is involved in releasing an inmate from SHU when the superintendent's hearing determination of guilty is reversed. "The inmate is to be released from SHU immediately and the failure to release Claimant immediately is a wrongful act that is wholly ministerial" (Cuevas v State of New York, Claim No. 95347, dated October 19, 2000, Mignano, J. [UID No. 2000-029-026]; see Minieri v State of New York, 204 AD2d 982; see also Gayle v State of New York, 135 Misc 2d 570; Gittens v State of New York, 132 Misc 2d 399, 406 [Ct Cl 1986]).

Accordingly, the Court finds the State liable for the five-day period from September 29, 2004, the date of the administrative reversal, to October 4, 2004, the date Claimant testified that he was released from SHU.

Claimant is awarded the sum of $15.00 per day for 5 days of excessive wrongful post-reversal confinement for a total of $75.00.

All motions upon which the Court reserved decision at trial are hereby denied. Any objections upon which the Court reserved decision at trial are now overruled.

It is further directed that, to the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act 11-a(2).

The Chief Clerk is directed to enter judgment accordingly.

May 20, 2008

Albany, New York


Judge of the Court of Claims