Pro se inmate's motion to set aside the trial decision dismissing his claim for wrongful confinement, excessive force, negligence and bailment was denied.
|Claimant short name:||GREEN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Shawn Green, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 21, 2010|
|See also (multicaptioned case)|
Claimant, a pro se inmate, moves to set aside a trial decision and the judgment entered
thereon pursuant to CPLR 4404 (b).
The instant claim alleges causes of action for wrongful confinement, excessive force, ministerial negligence and bailment arising from incidents occurring after the issuance of misbehavior reports on October 16, 2006 and November 15, 2006.
CPLR 4404 (b) provides authority for a Court sitting without a jury to set aside a trial decision and judgment entered thereon. In doing so, the Court may "make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue" (CPLR 4404 [b]). However, "[a] judgment rendered after a bench trial should not be disturbed unless it is obvious that the court's conclusions cannot be supported by any fair interpretation of the evidence, particularly where the credibility of the witnesses is central to the case" (Saperstein v Lewenberg, 11 AD3d 289, 289 ). Upon review of the testimony and evidence adduced at trial the Court finds no basis for setting aside the decision and judgment.
Claimant contends that the damages awarded on his wrongful confinement claim were inadequate because the first seven days of his confinement in the Great Meadow Correctional Facility special housing unit (SHU) were not privileged as this Court concluded in granting his motion for partial summary judgment on the issue of liability (see Green v State of New York, UID No. 2007-015-241, Claim No. 113099, Motion No. M-73701 [Ct Cl, October 31, 2007] Collins, J.(1) ). Following the issuance of two misbehavior reports, claimant was confined to the SHU on November 15, 2006. A hearing was not held within seven days of his confinement (see 7 NYCRR 251-5.1 [a]) and the claimant was released on December 1, 2006. In granting claimant's motion for partial summary judgment on the issue of liability, the Court held with respect to his claim for wrongful confinement that "[d]amages are limited . . . to the period by which the confinement exceeded that authorized by the applicable regulation" (Green v State of New York, UID # 2007-015-241, Claim No. 113099, Motion No. M-73701 [Ct Cl, October 31, 2007] Collins, J.). Inasmuch as the claimant's hearing did not commence until November 28, 2006, claimant was awarded $15.00 per day for the period by which the confinement exceeded the initial seven-day confinement. This result is in accord with the general consensus among Court of Claims Judges that the initial seven-day confinement following the issuance of a misbehavior report is privileged (see e.g. Green v State of New York, UID No. 2009-044-562, Claim No. 115393, Motion No. M-76707 [Ct Cl, October 13, 2009] Schaewe, J.; Himko v State of New York, UID No. 2007-045-502, Claim No. 109614 [Ct Cl, June 27, 2007] Lopez-Summa, J.; Gagne v State of New York, UID No. 2006-044-007, Claim No. 108815 [Ct Cl, November 14, 2006] Schaewe, J.; Solis v State of New York, UID No. 2002-030-056, Claim No. 104793 [Ct Cl, July 29, 2002] Scuccimarra, J.; Plair v State of New York, UID No. 2000-029-023, Claim No. 95693 [Ct Cl, Sept. 28, 2000] Mignano, J.). On the other hand, where an inmate is confined without the issuance of a misbehavior report or the misbehavior report fails to comply with the requirements of 7 NYCRR 251-3.1 ( entitled "Misbehavior Reports"), the initial seven-day confinement has been held not to be privileged (Lamage v State of New York, UID No. 2007-015-552, Claim No. 109310 [Ct Cl, May 10, 2007] Collins, J. [claimant was confined without the issuance of a misbehavior report or hearing]; Brown v State of New York, UID No. 2002-019-033, Claim No. 98898 [Ct Cl, September 30, 2002] Lebous, J.[misbehavior report failed to conform to 7 NYCRR 251-3.1 because it was not made by an employee with personal knowledge of the facts]; but see DuBois v State of New York, 25 Misc 3d 1137  [initial seven-day confinement not privileged where the wrongful excessive confinement claim is founded upon a successful article 78 proceeding annulling the hearing officer's findings of guilt]). This distinction satisfies due process requirements and, at the same time, assures that correction officers will not be "dissuaded by the possibility of litigation from making the difficult decisions which their duties demand" (Arteaga v State of New York, 72 NY2d 212, 220 ). Thus, where a misbehavior report has been issued in accordance with 7 NYCRR 251-3.1, the initial seven-day confinement is privileged. Inasmuch as claimant's initial seven-day confinement here was pursuant to a misbehavior report, which claimant does not contend failed to comply with 7 NYCRR 251-3.1, his confinement for this period was privileged.
Claimant's remaining contentions merit little discussion. With respect to the assault cause of action, claimant contends the Court failed to address the alleged use of force by Sergeant Vedder on November 15, 2006. The testimony adduced at trial indicates that both Officers Allen and Vedder restrained the claimant that day. The Court credited the testimony of Correction Officer Allen that the claimant was moving around during the course of the pat-frisk and, considering the slight nature of the claimant's injury, a three-quarter-inch abrasion over the left eye, concluded that "the force used to overcome claimant's resistance and obtain compliance with a direct order was reasonably required". The allegation that the claimant was a victim of excessive force was discredited based upon a fair interpretation of the evidence adduced at trial.
The Court also rejects the contention that it erred in dismissing the wrongful confinement claim which was based upon the alleged arbitrary and capricious issuance of two misbehavior reports on October 16, 2006. Claimant failed to establish at trial that the Department of Correctional Services' employees exceeded the scope of their authority or violated governing statutes or regulations in issuing the misbehavior reports or in the conduct of the hearing thereon. As a result, DOCS is immune from liability for the conduct complained of (Arteaga v State of New York, 72 NY2d 212, 214, 218-220 ; Holloway v State of New York, 285 AD2d 765 ).
With respect to the ministerial negligence claim arising from the alleged failure to provide claimant with a washcloth, comb or certain prescription medications within 24 hours following his admission to the SHU, claimant failed to establish by a preponderance of the credible evidence that he suffered an injury as the result of the conduct alleged (see Trottie v State of New York, 39 AD3d 1094, 1095 ). No new evidence is now submitted which alters this conclusion.
Claimant likewise failed to establish his bailment claim through evidence that the property he claimed was lost was delivered to the defendant with the understanding that it would be returned (see e.g. Ramirez v City of White Plains, 35 AD3d 698 ).
Based on the foregoing, claimant's motion to set aside the trial decision and judgment entered thereon is denied.
June 21, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Unreported decisions from the Court of Claims are available via the internet at www.nyscourtofclaims.state.ny.us.