New York State Court of Claims

New York State Court of Claims

DOE v. THE STATE OF NEW YORK, #2009-032-504, Claim No. 102256


Case Information

1 1.This claim includes allegations that claimant was the victim of a sexual offense. Thus, the claimant is entitled to the privacy protections of Civil Rights Law Section 50-b. As a result, claimant shall not be referred to by name, but shall be identified as “John Doe”.
Claimant short name:
Footnote (claimant name) :
This claim includes allegations that claimant was the victim of a sexual offense. Thus, the claimant is entitled to the privacy protections of Civil Rights Law Section 50-b. As a result, claimant shall not be referred to by name, but shall be identified as “John Doe”.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Andrew F. Plasse, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Thomas R. Monjeau, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
September 23, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


In April 1997, Claimant was sexually assaulted by a Correction Officer while an inmate at Adirondack Correctional Facility (ACF).[2] Claimant, thereafter, instituted an action alleging damages derived from a constitutional tort, specifically the right to be free from cruel and inhumane treatment pursuant to Article I, § 5 of the NY Constitution; negligence; harassment; abuse and excessive wrongful confinement. This Court granted Defendant’s motion to dismiss the constitutional tort and negligence causes of action, but preserved the causes of action for harassment, abuse and excessive wrongful confinement. The decision was affirmed by the Appellate Division, Third Department.

The allegations supporting the remaining causes of action are: being placed in solitary confinement at ACF after the sexual assault; placement in the Special Housing Unit (SHU) at Clinton Correctional Facility (Clinton); harassment by Correction Officers at Clinton; being slapped by a Correction Officer at Clinton; being the subject of a false misbehavior report; being kept in keeplock status; and the denial of medical and dental treatment (Notice of Claim ¶¶ 30, 31).

At trial, Claimant testified that he has been in and out of prison during the past twenty years for various felony and misdemeanor convictions. After the sexual assault took place in April 1997, Claimant was placed in keeplock at ACF for approximately two days until persons from the Department of Correctional Services’ Inspector General’s Office came to see him. During the time he was in SHU he alleges that he did not have a shower, recreation or medical treatment. However, his testimony was that he “never left his cell”, not that such privileges were not offered to him. The Inspector General’s Office collected evidence from him at ACF and accompanied him to Clinton.

At Clinton, Claimant was initially placed in the annex which is a dormitory-style facility with keeplock capabilities. During the time that Claimant was in keeplock, he testified, he did not leave his cell for a shower or medical treatment. After four to seven days in the annex, Claimant was taken to the medical unit where he met with someone from the Inspector General’s Office. While at the annex, Claimant believed he signed papers for voluntary protective custody.

Claimant was then transferred to the Assessment Preparation and Program Unit, also known as the APPU, in the main Clinton facility. The APPU houses 42 inmates who are either high profile or victim-prone. Claimant testified that he was placed in keeplock for four days in the APPU and never left his cell for recreation, a shower, or change of clothes. On the fourth day, he heard his name called, but the officers would not open his cell. He then spent another four days in keeplock without recreation, a shower or a change of clothing.

According to Claimant, on the eighth day in keeplock at the APPU, Correction Office Devan brought Claimant to the front of the APPU to distribute his property to him. Claimant alleges that as soon as he was brought there, Correction Officer Devan said, “Oh this inmate claims that an officer tried to make him suck his d***. I wouldn’t let you suck my dog’s d***.” Claimant allegedly responded, “It did happen and I can prove it.” Correction Officer Devan then allegedly slapped Claimant. Claimant allegedly observed other Correction Officers standing off to the side, clutching their clubs. Claimant believed that Correction Officer Devan wanted him to react to the slap so the other Correction Officers would jump him. According to Claimant, Correction Officer Devan ordered the other officers “to lock the f*** in”. Claimant was issued a ticket for verbal harassment of an officer and was given 14 days in keeplock.

After those 14 days transpired, Claimant received his property and privileges back. Claimant testified that while he was in the APPU, he requested protective custody from an inmate who sexually pursued him (T:57). He alleged that the prison then assigned such inmate to him as a porter. (T:57). On cross-examination, he testified that he requested protective custody from another inmate (T:74; Exhibit A).[3] He testified that while in keeplock status, he had no medical needs.[4] He believed the Correction Officers regarded him as an enemy because his claim was “against one of their own” (T:82). Claimant alleges that he was treated poorly until the time that DNA evidence proved that he was sexually assaulted. He was released from the APPU after six months without being attacked by another inmate.

Captain James E. Facteau testified about the procedures for handling inmates transferred to Clinton Correctional Facility. He testified that the APPU’s programs are run separately from the general population programs, and that the APPU has a protective custody section within it. When an inmate is first housed in the APPU, he is evaluated by a nurse, given a meal, and then brought down to his cell. He is kept in “draft keeplock”, confined to his cell, until he is interviewed by one of the sergeants to determine if his placement is going well in the APPU. Claimant acknowledged that this was the “normal process” (T:32). During keeplock status, the inmate is entitled to three showers a week, toiletries, blankets and sheets. Since they are not given their personal property until they are interviewed, it is possible that they will not have a change of clothing until the interview. If an inmate is not feeling well during that time, he can submit a sick-call slip to receive medical attention. Captain Facteau testified that he interviewed claimant on April 19, 1997, to determine whether he had any enemies, was victim-prone or had any other problems due to being placed in the APPU. Captain Facteau determined after the interview that Claimant was ready to start the normal programs for an inmate and could be released from keeplock.

Correction Officer Jay Devan testified about the incident with Claimant after Captain Facteau interviewed him and found him eligible for release from keeplock and into the APPU’s programs. Specifically, he testified that on April 19, 1997, Correction Officer Devan had Claimant brought down from his cell to an area in the APPU where property was disbursed. When he arrived, the Correction Officer told him to have a seat because he was waiting for another officer to be present as a witness. Claimant asked Correction Officer Devan, “Are you afraid that you may want me to suck your d***, too?” Correction Officer Devan escorted Claimant to his cell and issued him a misbehavior report for harassment. Captain Facteau then issued keeplock status for Claimant. Correction Officer Devan denied slapping Claimant. Although this allegation was investigated by a Sergeant, Devan was never disciplined for it.


The Court dismisses the causes of action for harassment, abuse and excessive wrongful confinement because Claimant failed to prove them by a preponderance of the credible evidence. Excessive wrongful confinement is a claim that sounds in false imprisonment as it is a species thereof (Gittens v State of New York, 132 Misc 2d 399, 407 [1986], citing Middleton v State of New York, 54 AD2d 450 [3d Dept 1976], affd 43 NY2d 678 [1977]. To recover money damages in an action for false imprisonment, a claimant must establish that: (1) the Defendant intended to and did confine him; (2) that he was conscious of the confinement; (3) that he did not consent to the confinement; and (4) that 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]; Martinez v City of Schenectady, 276 AD2d 993 [3d Dept 2000]). It is clear from the record that the first three elements of this tort are satisfied. The fourth element, that of privilege, must be analyzed.

An action by a government official is said to be privileged when it is made pursuant to lawful authority (see Collins v Brown, 129 AD2d 902 [3d Dept 1987]) or performed “under color of law or regulation” (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]). “To carry out the ‘formidable tasks’ of maintaining order and security in correctional facilities and protecting the safety of inmates and employees, the Legislature has granted the Commissioner of Correctional Services broad discretion in the formulation and implementation of policies relating to security and the disciplining of inmates” (Arteaga v State of New York, 72 NY2d 212 [1988], citing Matter of Rivera v Smith, 63 NY2d 501, 513 [1984]). Pursuant to said grant of authority (Correction Law §§ 112, 137), the Commissioner has adopted procedures regarding inmate behavior, including confining an inmate to his cell or room “where such action appears reasonably necessary for protection of the inmate” (7 NYCRR 251-1.6[b]). An inmate may not be confined for more than 72 hours and within that time the inmate shall either be: (1) transferred to another housing unit; (2) scheduled for transfer to another facility; (3) released from such confinement; or (4) placed in protective custody (7 NYCRR Part 251-1.6 [b], supra).

Claimant’s testimony was disjointed, thereby making his rendition of the facts confusing. However, it is clear to the Court that he requested protective custody at least two times. The first request for protective custody was at Clinton’s annex and the second request was while Claimant was in the APPU at Clinton. DOCS’ retention of Claimant in keeplock was clearly privileged as it was pursuant to regulations promulgated under statutory law.

Absolute immunity protects actions by government officials when they are lawfully carrying out duties that are “classically judicial” (Tarter v State of New York, 68 NY2d 511, 518 [1986]), such as decisions “which involve the officials' expertise, an application of law and an exercise of their judgment”(Tarter v State of New York, 68 NY2d 511, supra at 518-519; see also Arteaga v State of New York, 72 NY2d 212, supra; Tango v Tulevech, 61 NY2d 34). Qualified, rather than absolute immunity shields government officials from liability when, in the course of carrying out their official duties, they perform actions “requiring expert judgment or the exercise of discretion” (Arteaga v State of New York, 72 NY2d 212, supra; Tarter v State of New York, supra; Tango v Tulevech, 61 NY2d 34, supra). The State or other government entity can be held liable for actions falling in this category only if it is determined that the officials lacked a reasonable basis for their decisions, failed to engage in a rational decision-making process before taking action, or violated constitutional or statutory rights of which reasonable persons would be aware (Haddock v City of New York, 75 NY2d 478 [1990]; Alex LL. v Department of Social Servs. of Albany County, 60 AD3d 199 [3d Dept 2009]; Schittino v State of New York, 262 AD2d 824 [3d Dept 1999], lv denied 94 NY2d 752 [1999]). The quasi-judicial acts of DOCS’ employees taken in furtherance of authorized disciplinary measures are entitled to absolute immunity (Arteaga v State, 72 NY2d 212, supra at 219-220; Mitchell v State of New York, 32 AD3d 594 [3d Dept 2006]. The disciplinary actions of Correction Officer Devan and Captain Facteau were within the guidelines of 7 NYCRR Parts 250 and 251, the procedures for implementing standards of inmate behavior, and therefore, are entitled to immunity.

The causes of action for harassment, abuse and lack of medical and dental care, are also without merit. Claimant admitted that he did not have any medical problems while in keeplock and his testimony about dental work was vague as to when such care was needed. As for his claims of harassment and abuse, the Court finds that claimant’s testimony was inconsistent, overstated and ambiguous. “The credibility of the witnesses . . . the truthfulness and accuracy of the testimony, whether contradicted or not, and the significance of weaknesses and discrepancies are all issues for the trier of the facts” (Herring v Hayes, 135 AD2d 684 [2d Dept 1987], citing Sorokin v Food Fair Stores, 51 AD2d 592, 593 [2d Dept 1976]).

Based on the foregoing, the Court finds that claimant failed to prove any of the causes of action by a preponderance of the credible evidence.

The claim is hereby dismissed. All motions not previously ruled upon are denied.

Let judgment be entered accordingly.

September 23, 2009
Albany, New York

Judge of the Court of Claims

[2].The Correction Officer was convicted of sodomy in the third degree and official misconduct.
[3].Claimant’s testimony was “I requested protection from him, but I truly didn’t think that it would translate into them locking me up on the top gallery behind another fence.” (T:85). It is unclear whether the inmate he refers to in this testimony is the same inmate he testified about on T:56 or if the latter is a third request for protective custody.
[4].His testimony about needed dental work was unclear as to whether it was during or after keeplock status (T: 77).