New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2009-015-513, Claim Nos. 113704, 113705


Claimant, a pro se inmate, failed to establish a cognizable cause of action arising from discretionary determination to place him in a maximum security prison.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113704, 113705
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Stephen Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 15, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The claims herein allege that the claimant is a non-violent inmate improperly placed in a maximum security correctional facility "without committing a serious prison infraction". The trial of the claim was held on November 5, 2008.

Claimant testified that he was convicted of forgery for fraudulent receipt of $60.00 in food stamps. He was initially designated as a medium security inmate and confined at the Cayuga Correctional Facility (see Exhibit A). At some point the claimant was charged with a disciplinary infraction for failing to "properly spread my butt cheeks". Claimant asserted that he did not refuse the instruction but that he was accused of improperly complying with the order. A Tier III proceeding was commenced and the claimant was subsequently found guilty and reclassified as a maximum security inmate.

Various documents were received in evidence as Exhibits 1 - 13. Claimant concluded his testimony by stating that as a non-violent inmate it was inappropriate for him to be housed in a maximum security prison unless he had been convicted of violating "a serious prison infraction" as defined in 7 NYCRR 280.2 (b) (2).

The defendant called Captain Steven Rowe, Acting Superintendent for Security at Great Meadow Correctional Facility. Captain Rowe testified that as part of his duties he is familiar with both the inmate security classification and inmate disciplinary systems of the Department of Correctional Services (DOCS). The witness explained that inmates are classified pursuant to the inmate classification system according to various factors including the crime or crimes committed, the inmate's disciplinary history, prior incarcerations and overall adjustment to confinement. Each individual inmate's classification is reviewed quarterly. An inmate's classification can change between maximum and minimum security throughout their period of incarceration based upon issues including their adjustment, disciplinary infractions and legal events occurring subsequent to their initial incarceration, including the issuance of warrants and convictions.

Claimant's initial security classification assessment was received as Exhibit A. This document reflects that the claimant was received into DOCS custody on July 3, 2003 and that on July 7, 2003 it was recommended that he be assigned to a medium security prison. Captain Rowe reviewed a current status inquiry sheet contained within Exhibit A, which he testified reflects that on March 8, 2004 the claimant was the subject of an order transferring him from Cayuga Correctional SHU to the SHU at Southport Correctional Facility. Consistent with the order, the claimant's security classification was changed to "max A" on March 15, 2004. The reason for the transfer related in the document indicates "I/M lied to C.O. about law lib. call-out - went to gym. While in SHU, ref. frisk for med. trip. Ignored D/O's to comply. Disturbed quiet in SHU".

A transcript of claimant's inmate disciplinary history was received in evidence as Exhibit B. The document reflects that the claimant was the subject of a Tier II proceeding on February 17, 2004 in which he was charged with violating prison disciplinary rules 107.20 (false information) and 109.10 (out of place) (see 7 NYCRR 270.2). The claimant was placed on keeplock and lost various privileges. The record further reflects that the claimant was subject to a Tier III hearing held on March 3, 2004 in which he was charged with violating prison disciplinary rules 104.13 (creating a disturbance), 107.10 (interference), 106.10 (failure to comply with a direct order) and 115.10 (search/frisk). As a result of the Tier III proceeding the claimant was assigned 90 days of SHU confinement. Captain Rowe testified that it is not at all unusual for an inmate to be reclassified from a medium security to a maximum security risk as a result of disciplinary infractions because inmates in a medium security prison are housed in a dormitory setting and provided an increased level of freedom.

On cross- examination the witness testified that a Tier III infraction is one justifying more than 30 days confinement and that the determination as to what Tier should be charged for a particular offense is made on a case-by-case basis by the Lieutenant assigned to review the matter. Even non-violent infractions of prison disciplinary rules may justify confinement in the SHU. Defendant rested at the conclusion of Captain Rowe's testimony.

The decision whether to classify prison disciplinary charges as Tier I, II or III is discretionary and not a matter in which a court should substitute its judgment for that of the proper correctional personnel (Matter of Pettus v Selsky, 28 AD3d 1043 [2006]). Furthermore, the Commissioner of the Department of Correctional Services has "almost unbridled authority to transfer inmates from one facility to another" (Matter of Johnson v Ward, 64 AD2d 186, 188 [1978]; Salahuddin v Coughlin, 202 AD2d 835 [1994]), including transfers occurring subsequent to an inmate's reclassification from medium to maximum security status (Matter of Martin v Coughlin, 207 AD2d 932 [1994]; Matter of Davis v Office of Classification & Movement, N.Y. State Dept. of Correctional Servs., 208 AD2d 922 [1994]). The Commissioner is granted substantial discretion in determining the security classification of individual inmates (Matter of Burr v Goord, 8 AD3d 853 [2004]). In this regard the Commissioner has "the power to determine what degree of supervision is required, whether for the protection of the prisoner or the public" (Ramerez v Ward, 64 AD2d 995 [1978]).

In light of the above, the claimant has failed to establish a cognizable cause of action thereby requiring dismissal of the claims.

All motions not previously decided, including motion number M-75858, are hereby denied.

Let judgments be entered accordingly.

January 15, 2009
Saratoga Springs, New York

Judge of the Court of Claims