New York State Court of Claims

New York State Court of Claims

HOLMES v. THE STATE OF NEW YORK, #2008-044-569, Claim No. 115078, Motion No. M-75012


Claimant’s motion for summary judgment granted with regard to liability in claim for wrongful confinement. State essentially acknowledged that claimant had been held in keeplock for an additional nine days beyond the expiration of his disciplinary sentence due to a paperwork error. Trial to be scheduled on damages

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:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 4, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, while an inmate proceeding pro se,[1] filed this claim alleging that he was wrongfully confined in keeplock at Elmira Correctional Facility (Elmira) for nine days after the expiration of his disciplinary sentence. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Claimant moves for summary judgment.[2] Defendant opposes the motion. Claimant was issued a misbehavior report on October 17, 2007. A Tier III disciplinary hearing was held on October 22, 2007 and claimant was found guilty of several violations. Claimant was sentenced to 120 days in a Special Housing Unit (SHU), with 30 days suspended. Based upon the Hearing Disposition, the sentence began on October 17, 2007 and claimant’s release date was scheduled to be January 15, 2008.[3] Claimant was apparently released from SHU on January 15, 2008, but was immediately placed in keeplock status in the I-Block at Elmira. On January 24, 2008, claimant was released from keeplock.

Thereafter, claimant filed a grievance. The Inmate Grievance Review Committee (IGRC) concluded that due to a “mix-up,” claimant was placed in keeplock for an extra nine days. IGRC agreed that an error had been made, but stated that it had no ability to reprimand or counsel staff as claimant had requested in his grievance. On appeal, the Superintendent indicated that although a mistake had been made, “no malice was intended.” The Central Office Review Committee noted that an inadvertent error was made, and that upon notice of the mistake, staff took the appropriate action.

Claimant, as the movant on this motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra).

In order 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 [1986]) – 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], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]).

It is well-settled that defendant is entitled to absolute immunity from claims for monetary damages relating to disciplinary hearings so long as it complies with the rules and regulations that govern such hearings (Arteaga v State of New York, 72 NY2d 212 [1988]). However, that immunity may be lost if defendant violated its own rules and regulations in conducting the hearing, or otherwise acted outside the sphere of privileged actions (id.).

In this action, claimant is not challenging defendant’s imposition of a disciplinary sentence against him. Rather, claimant alleges that notwithstanding the expiration of that disciplinary sentence, he was subjected to further restricted confinement for an additional nine days.

It is undisputed that claimant was held in keeplock without authorization for nine days from January 15, 2008, when he was released from SHU, through January 24, 2008, when he was released from keeplock. During the investigation conducted as part of claimant’s grievance, Correction Sergeant Harold Hatch stated that he “[had] no explanation for how [it] happened other than . . . there was a mix up of some sort.”

It is clear that defendant intended to and did confine claimant without his consent, that claimant was conscious of said confinement, and that the confinement was not privileged (Broughton v State of New York, supra). Because claimant’s wrongful confinement resulted from a ministerial error – that is defendant placing claimant in keeplock without any explanation – rather than a discretionary decision, defendant is not entitled to immunity (see e.g. Arteaga v State of New York, supra; Tango v Tulevech, 61 NY2d 34 [1983]; Perez v State of New York, Ct Cl, Feb. 14, 2001, Sise, J., Claim No. 99839 [UID # 2001-028-0005]). Having established all the elements of a cause of action for wrongful confinement, claimant has demonstrated his entitlement to judgment as a matter of law.

The burden then shifts to defendant to submit evidence in admissible form to create a material issue of fact or question of credibility which would require a trial of this claim. Defendant has provided an affidavit of Sergeant Hatch in opposition to this motion. Sergeant Hatch states that claimant never informed him that he (claimant) was improperly held in keeplock, and that if Hatch had been alerted to that fact, he would have investigated the matter and promptly released claimant. Defendant therefore argues that claimant failed to mitigate his damages by informing staff that he was wrongfully held in keeplock. This contention is completely without merit. An inmate has no obligation to inform the prison staff that he should not be held in restrictive confinement. Defendant has failed to raise any material issue of fact or create any question of credibility. Accordingly, defendant is liable for claimant’s wrongful confinement for nine days. However, claimant has not provided any evidence from which the Court could ascertain the amount of damages, if any, that he suffered. The issue of damages must therefore await resolution at trial (see Green v State of New York, Ct Cl, Oct. 31, 2007, Collins, J., Claim No. 113099, Motion No. M-73701 [UID # 2007-015-241]; see also Jackson v State of New York, Ct Cl, May 28, 2008, DeBow, J., Claim No. 114376, Motion No. M-74354 [UID # 2008-038-597]).

Claimant’s motion for summary judgment is granted solely on the issue of liability. A trial on the issue of damages will be scheduled in due course.

September 4, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on May 27, 2008; Affidavit of Darrow Holmes sworn to on May 22, 2008, and attached Exhibits A through E.

2) Affirmation in Opposition of Roberto Barbosa, Assistant Attorney General, dated June 24, 2008, and attached Exhibits A through C.

Filed papers: Claim filed on April 4, 2008; Verified Answer filed on May 9, 2008; Amended Verified Answer filed June 16, 2008.

[1]. Shortly after making this motion, claimant was released from the custody of the Department of Correctional Services.
[2]. After claimant made this motion, defendant filed and apparently served an amended answer as of right (see Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b]), which included an additional affirmative defense alleging that claimant failed to mitigate his damages. This motion will be determined in light of that affirmative defense.
[3]. Claimant’s Motion for Summary Judgment, Exhibit C.