Claimant, an inmate proceeding pro se, alleges that his transfer from the
long-term protective custody unit at Clinton Correctional Facility to the
general population at Great Meadow Correctional Facility on April 11, 2005 was
retaliatory and motivated by a desire to punish him for the exercise of his
constitutionally protected rights. The claim was tried on April 30, 2009.
Claimant testified that in April 2005 he was in the process of preparing a
motion pursuant to CPL § 440 when he was advised by the law librarian at
Clinton Correctional Facility, Correction Officer McClain, to apply for a
sentence reduction under the Rockefeller drug law sentencing reforms. Claimant
testified that Officer McClain instructed him that if he continued to pursue a
CPL § 440 motion he would be transferred out of the protective custody
unit. He testified that approximately two months later he was transferred to
Great Meadow Correctional Facility. Claimant testified that he was transferred
because he would not stop pursuing his CPL § 440 motion. He testified that
he wrote a letter to the inmate movement control unit but that he was
transferred anyway. Claimant testified that as a result of this transfer, he
was unable to complete his drug rehabilitation program, his access to the law
library was denied and his ability to file a CPL § 440 motion was impeded.
On cross-examination claimant testified that he was in the long-term protective
custody unit at Clinton Correctional Facility for approximately five years prior
to his transfer to Great Meadow. He was questioned with regard to paragraph "7"
of the claim which alleges that he filed a CPL § 440.10 motion on September
23, 2004. Claimant then explained that his problems with the librarian started
a couple of months after he received a letter regarding the sentencing reforms
in January 2005. He admitted, however, that this letter was sent by the Erie
County Bar Association, not the law librarian (see Exhibit 1[f]).
Defendant called Isabelle McClain to testify on its behalf. Ms. McClain
testified that she was a Correction Officer for 25 years and is now retired. She
testified that she supervised the law library at Clinton Correctional Facility.
Ms. McClain stated that she never denied the claimant access to the law library,
never gave him legal advice, never told him he would be transferred if he filed
a CPL § 440 motion and never tried to influence the assessment committee to
remove claimant from the long-term protective custody unit.
On cross-examination Ms. McClain testified that claimant used the law library
frequently and that she does not remember giving the claimant a "ticket" for
alleged misconduct. Ms. McClain testified that she never advised the claimant
not to file a CPL § 440 motion.
Claimant failed to establish by a preponderance of the credible evidence that
his transfer from the long-term protective custody unit at Clinton was motivated
by a desire to punish or prevent him from exercising his constitutionally
protected rights. While the claimant testified that his ability to file a
motion pursuant to CPL § 440.10 was impeded by his transfer, he also
admitted that the motion was filed in September 2004, long before the transfer
occurred. Nor does the Court conclude that Ms. McClain attempted to dissuade
the claimant from filing the motion with threats of a transfer. The law is
well-settled that 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 ; Matter of Burr v Goord, 8
AD3d 853 ). As claimant failed to establish that his transfer was
retaliatory or otherwise motivated by a desire to prevent him from exercising
his constitutionally protected rights, his claim must be dismissed.
Let judgment be entered accordingly.