Following a pro se inmate trial, claimant was awarded damages for unauthorized restriction to 24-hour medical keeplock. Remaining claim for postage was dismissed.
|Claimant short name:||LAMAGE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Edwin Lamage, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Kent Sprotbery, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 22, 2010|
|See also (multicaptioned case)|
Claimant, a pro se inmate, asserts eight unrelated causes of action in his claim. Prior to trial, claimant withdrew his "SECOND", "THIRD", "SIXTH", "SEVENTH" and "EIGHTH" causes of action.(1) The remaining causes of action proceeded to trial on October 21, 2009.
In his first cause of action claimant seeks $9.10 for postage costs which he alleges were wrongfully deducted from his inmate account. The claim asserts that the claimant authorized a deduction from his account in order to ship two bins and a bucket from Great Meadow Correctional Facility to Wende Correctional Facility (Wende) by "the parcel post office UPS".(2) Claimant testified at trial that upon receiving the items at Wende he observed that the box in which they were packed did not display any indication (postage) that they had been shipped by "UPS". Claimant filed an administrative claim (Exhibit 1), attempting to recoup the amounts disbursed from his account, which was denied. An investigation of the claim resulted in a memorandum from Captain Kearney which stated:
"Inmate Lamage arrived 2/8/05 with three bags of property which was issued to him on 2/12/05. On 2/16/05 one mail-in parcel of property arrived and was issued to Inmate Lamage on 2/20/05. The Great Meadow 2064 indicates a mail-out was sent and the Wende Draft Log notes that one mail-in was received. Normally four draft bags are sent via State transportation unless the items are oversized and those items must be sent via postal service" (Exhibit 1, Memorandum dated February 2, 2006).
In a memorandum from Elizabeth Blake dated March 21, 2005, written in response to the claimant's letter to Superintendent Zon, Ms. Blake states:
"Please be advised that my investigation has revealed that your package did arrive at Wende Correctional via the US Postal Service and that the contents were repacked into another box before being issued to you" (Exhibit 3).
Defendant's Exhibit A, which is also a part of Exhibit 1, is a disbursement form signed by the claimant in which he authorized the deduction of $9.10 from his inmate account for the cost of shipping two bins and a bucket to Wende.
The claimant failed to establish by a preponderance of the credible evidence that the defendant wrongfully deducted $9.10 from his inmate account. While the claimant speculates that the box containing two bins and a bucket were shipped by DOCS, the proof adduced at trial makes it equally likely that the box was shipped by an independent carrier. Claimant's first cause of action is therefore dismissed.
Claimant alleges as his fourth cause of action a claim for wrongful confinement stemming from his continuous confinement to his cell from April 8, 2006 though April 14, 2006. As his fifth cause of action claimant alleges he was wrongfully deprived of one hour recreation per day during the same period. Claimant testified that certain medical restrictions were imposed upon him following his return to Wende Correctional Facility after undergoing surgery on his right ankle. A Medical Restriction form signed by a physician and dated April 4, 2006 sets forth the following limitations upon claimant's activities: "No Work/No School"; "Feed in Cell" and "Cane/Crutch Permit" (Exhibit 2, p.4). The form indicated that the restrictions would be in effect through April 24, 2006. The form goes on to state: "Only the dated restrictions are to be followed. The medical restriction(s) do not preclude any authorized privilege" (Exhibit 2, p. 4).(3)
Claimant wrote a letter to Superintendent Kirkpatrick which stated that security personnel had placed him on "medical keeplock" beginning April 8, 2006 although the medical department had authorized no such restriction (Exhibit 1). The Deputy Superintendent for Health Services responded that he would speak with a physician and forward the claimant's letter to Captain Kearney so that he could address the claimant's concerns (Exhibit 1). Claimant filed a grievance dated April 11, 2006 requesting immediate release from the 24-hour per day confinement (Exhibit 2, p.1). Sergeant Lambert indicated the following in a memorandum dated April 18, 2006:
"Lamage has medical restrictions consisting of no work, no school, feed in cell and a cane permit. The sanctions were enacted by the medical department from 4/4/06 thru 4/24/06. The past policy has been that inmates under these restrictions have not been allowed to attend the law library. Perhaps the materials should be sent to Lamage for cell use" (Exhibit 2, p.2).
Ms. Aiello-Howe prepared a memorandum to the Inmate Grievance Resolution Committee ("IGRC") dated April 20, 2006 in which she memorialized her investigation of the matter as follows:
"I am in receipt of grievance dated 4/13/06 and have investigated same.
The medical restriction form dated 4/4/06 to 4/24/06 indicates no work/no school, a feed in cell and use of a cane. The medical form does not indicate a 24-hour medical keeplock" (Exhibit 2, p. 3).
On April 25, 2006 the IGRC recommended that claimant "be allowed all activities that are not listed on his medical restriction permit. IGRC staff recommends that any law library supplies be sent to grievant" (Exhibit 2, p. 5). Claimant testified that he was deprived of library and recreation privileges and was unable to attend religious services from April 8, 2006 through April 14, 2006.
Sergeant Scott Lambert was called to testify on the defendant's behalf. Sergeant Lambert testified that he was employed at Wende Correctional Facility in April, 2006 and recalled that the claimant was housed on B-block with other general population inmates. He testified that Medical Restriction forms are maintained on the housing block. If the box on the form for recreation was not checked, then the claimant would have been permitted to attend recreation if he requested to do so. There was no restriction on the claimant attending religious services. The witness testified that the claimant was unable to attend the law library because his medical restrictions included no work/school.
On cross-examination Sergeant Lambert testified that the memorandum dated April 20, 2006 (Exhibit 2, p. 3), indicating that the claimant was not on medical keeplock, was from the medical department. Exhibit 3 is a movement change sheet dated April 15, 2006 indicating that the claimant moved from B-block to C-block. Claimant alleges in his claim that his wrongful confinement extended through April 14, 2006 and ceased upon his move to C-block. With respect to the claimant's fifth cause of action alleging loss of daily recreation, he reiterated that he was deprived of one hour of recreation each day during the relevant time period.
Wrongful confinement, a species of the tort or false imprisonment, is established when it is shown that "(1) the defendant intended to confine [the claimant] (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 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929  ). It is undisputed that the first three elements of a claim for wrongful confinement were established. With respect to the fourth element, the confinement is privileged to the extent it is imposed "under color of law or regulation" (Gittens v State of New York, 132 Misc 2d 399, 402 ). The burden of establishing that the confinement was privileged is on the party charged with the commission of the tort (Hollender v Trump Vil. Coop., 58 NY2d 420, 425 ; Parvi v City of Kingston, 41 NY2d 553, 557 ; Gonzalez v State of New York, 110 AD2d 810, 812 , lv dismissed 67 NY2d 647 ). In the Court's view, defendant failed to meet this burden.
An inmate may be confined to his cell where there are reasonable grounds to believe that the inmate represents a threat to the safety, security or order of the facility or a danger to other persons or property (7 NYCRR § 251-1.6 [a]); where such action appears reasonably necessary for the protection of the inmate (7 NYCRR § 251-1.6 [b]); where the inmate refuses to participate in an assigned activity (7 NYCRR § 251-1.6 [c]); or where an inmate's behavior in his cell is disruptive or inconsistent with the best interests of the inmate or the facility (7 NYCRR § 251-1.6 [d]). Unless the confinement is necessitated by a medically excused inability to participate in an assigned activity or is the result of a disciplinary hearing, a report of confinement is required to be made before the officer who placed the inmate in confinement goes off duty (7 NYCRR § 251-1.6 [e] , ).
The claimant established that he was not restricted to medical keeplock and the defendant failed to meet its burden of proving that the confinement was privileged (cf. Davis v State of New York, 262 AD2d 887 ). No evidence was offered to establish that the claimant's confinement was authorized pursuant to 7 NYCRR § 251-1.6 and the medical restriction in issue did not authorize medical keeplock nor did it restrict the claimant's participation in recreation activities (Exhibit A). Correction Officer Lambert's testimony that the claimant would have been permitted participation in outdoor recreation if requested is insufficient to permit the conclusion that claimant refused outdoor recreation. Officer Lambert had no specific recollection that claimant refused outdoor recreation and the defendant offered no records to substantiate the defense that outdoor recreation was refused. In the Court's view, claimant established by a preponderance of the credible evidence that he was wrongfully confined to medical keeplock in contravention of prison regulations (see e.g. Pacheco v State of New York, Ct Cl, December 2, 2002 [Claim No. 104032, UID # 2002-032-501], Hard, J.). As the defendant failed to meet its burden of establishing that the claimant's confinement to medical keeplock was privileged, the Court finds in favor of the claimant with respect to his fourth and fifth causes of action for wrongful confinement.
Regarding damages, claimant was unable to attend his usual programs due to medical restrictions and therefore his damages are limited to the deprivation of library and recreation privileges from April 8, 2006 through April 14, 2006 and religious services on April 9, 2006. The Court awards the claimant $15.00 per day for a total of seven days.
Based on the foregoing, claimant's first cause of action is dismissed and the Clerk is directed to enter judgment in favor of the claimant on his fourth and fifth causes of action in the amount of $105.00.
To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.
January 22, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. The second cause of action alleged wrongful confinement in the special housing unit from October 15, 2004 through February 4, 2005. The third cause of action involved an alleged wrongful termination of double-bunk privileges, that had been the subject of a prior claim, which was dismissed following trial (see Lamage v State of New York, Ct Cl, July 16, 2009 [Claim No. 111068, UID # 2009-015-523], Collins, J.). The sixth cause of action alleged the wrongful deprivation of religious services on March 12, 2006, March 19, 2006, March 26, 2006 , April 2, 2006 and April 9, 2006. The seventh cause of action alleged the defendant failed to pay the claimant his weekly wage of $2.37 during the period of time he was unable to work due to a medical restriction. The eighth cause of action alleged that the claimant was wrongfully deprived of library privileges for 11 days.
2. It is unclear whether the items at issue were to be shipped by the United States Postal Service or via the United Parcel Service.
3. No recreation restriction was indicated on the form.