After unified trial, State found liable for wrongful confinement of pro se inmate claimant for his extended placement in a double occupancy cell in contravention of DOCCS regulations. Because no loss of other privileges associated with double occupancy cell, nominal sum for damages for 33 day period kept in such cell that was not privileged.
|Claimant short name:||CARLISLE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||ANTWANE CARLISLE, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||July 2, 2010|
|See also (multicaptioned case)|
Antwane Carlisle alleges in his amended claim that defendant's agents at Green Haven Correctional Facility [Green Haven] violated an arrangement he had "contracted"(1) for at Auburn Correctional Facility [Auburn] regarding limited voluntary placement in a double bunk, in or about April 2007. Specifically, he claims that on April 5, 2007 he had agreed to be housed in a double bunk cell for sixty (60) days in a facility in his selected geographical area, yet upon his transfer to Green Haven from Auburn he ended up in a double bunk cell for a longer period than he had agreed to.
He also alleges a bailment or theft of property cause of action in the amended claim in addition to the cause of action noted above, surrounding an alleged disappearance of property brought in by a visitor on or about August 16, 2007, missing from the package room when Mr. Carlisle went to claim the property.
The original claim was filed on October 22, 2007, and only recites factual information concerning the double bunking occurring in or about April 2007 through September 21, 2007. [See Claim Number 114385, filed October 22, 2007(2) ]. The affidavit of service appended to the claim indicates that the claim was served upon the Attorney General's Office by certified mail, return receipt requested on or about October 16, 2007. [See id.]. There is no mention of a property loss in August 2007. [See id.]. The State of New York interposed an answer on or about November 26, 2007.
An amended claim was filed on December 7, 2007 and, according to the affidavit of service attached thereto, was served upon the Attorney General's Office by certified mail, return receipt requested on or about an unspecified day in December 2007. [See Amended Claim No. 114385, filed December 7, 2007]. The affidavit of service, as well as the verification to the amended claim, were notarized on November 28, 2007. [See id.]. The defendant interposed an amended answer to the amended claim on or about January 15, 2008.
Mr. Carlisle testified that while at Auburn he had agreed to spend sixty (60) days housed in a double bunk, but had not agreed to any extension of that arrangement, and he signed an agreement to that effect on April 5, 2007. [Exhibit 2]. At Auburn, he executed a "pre-transfer double cell waiver" on April 5, 2007 as noted, wherein it is agreed that the inmate volunteers
"to be assigned to the first available bed at a facility in my selected geographical area with clear knowledge that it may be a double cell. I further understand that this double cell assignment will not exceed 60 days unless I volunteer and sign the appropriate form." [Exhibit 2].
When he arrived at Green Haven he "reaffirmed that agreement," signing another document on May 11, 2007 indicating that he refused to volunteer for double cell housing for more than sixty (60) days. [See Exhibit 1]. The same document, indicates that the inmate understands that by such refusal, the inmate "may be transferred to any other suitable facility."
Prior to completing the entire sixty (60) days in a double cell at Green Haven, Mr. Carlisle said he received "an unrelated misbehavior report." As a result, he served forty-five (45) days keeplock in the special housing unit [SHU]. Mr Carlisle said "when you serve keeplock, that time is not counted toward your double bunk time."
After release from SHU, he was returned to a double bunk. "In July or August 2007, as [he] got close to the end of the 60 days, [he] wrote to Captain Keyser" to obtain a transfer to a single cell, but never got a response from him, or from "anyone else" he wrote to in "administration." Mr. Carlisle estimated that "sometime in August 2007 the 60 days" should have been completed. Thereafter, he wrote repeatedly to Superintendent Ercole and others, including Captain Keyser, asking that they honor their policy, as well as the written contract he had entered into. He claimed to have never received responses from administrative personnel. No copies of his correspondence were submitted.
On or about September 19, 2007 he filed a grievance. [Exhibit 3]. "Within two, three days of filing a grievance I was immediately placed in a single cell." When he was placed in a single bunk cell, he had served an additional "60 days beyond the original agreement." This, he said, was "in violation of Directive 4003, subdivision 1701.7 (D)" as well as a breach of the "contractual arrangement" he made.
Mr. Carlisle indicated that he "did not recall ever receiving a written response to the grievance," however.
On cross-examination, claimant confirmed that he chose a region to be relocated to, not specifically Green Haven, to be closer to his family. He confirmed that he had no copy of a letter to Captain Keyser mentioned in his direct statement. He also conceded that while housed in a double cell, one comes and goes as normally as would as any inmate in general population at Green Haven. He confirmed again that the form signed on May 11, 2007 effectively indicates that he would be housed for sixty (60) days in a double occupancy cell. He agreed that the grievance filed on September 19, 2007 was the first grievance he filed about being kept in a double cell.
Captain Royce, employed at Green Haven for two (2) years at the time of trial and elsewhere within the New York State Department of Correctional Services [DOCS] system previously, including Downstate Correctional Facility, and familiar with DOCS policy concerning double cell placement, testified for the defendant.
The witness identified a computer printout showing a locator history for claimant from March 12, 2007 through September 21, 2007. [Exhibit A]. Captain Royce explained that the record showed that claimant was moved from B-block to SHU to serve the disciplinary sentence he described on May 18, 2007, returning from SHU - where inmates are in single cells - to a double cell again on June 20, 2007. [See id.]. When asked about the policy on double occupancy cell placement when such housing is interrupted by serving a disciplinary sentence in SHU, Captain Royce said that the calculation of the sixty (60) days would "start over" after serving the SHU sentence upon the return to a double cell. He said:
"The department has a two (2) year rule if they receive keeplock time. For double celling [eligibility], the criteria is within two (2) years of a misbehavior report or two (2) years within the department; . . . if they have any of that criteria they are eligible for double celling."
The witness was shown the May 11, 2007 refusal form executed by claimant, wherein he refused to volunteer for double cell housing beyond sixty (60) days. [Exhibit 1]. Captain Royce explained that because of the refusal, a transfer request is implemented, because there are often no single cells available. He said:
"Those inmates who have been double bunked the longest, or for whom there are medical issues, are put in the first available single bunk cells. Transfers may take some time to implement, which is why Mr. Carlisle was likely kept beyond 60 days from June 20, 2007."
On cross-examination, the witness reiterated that an inmate is "eligible for double bunking if you have received a misbehavior report within the previous two (2) years, or have been in the department less than two (2) years." He confirmed that such a policy is derived from DOCS Directive 4003. Claimant then presented a photocopy of Directive 4003(3) which indicates it was issued on December 24, 1998, and contains amendments through August 20, 2002. [Exhibit 4]. Neither the witness (or the claimant) was able to say whether the version presented in evidence was the precise version in effect in 2007.
Captain Royce did say, however, that his interpretation - including the proviso that a disciplinary sentence interrupts the calculation and commences it anew - is the practice followed from the regulations, and that it is derived from the portion of the regulation entitled "Selection of Inmates for Double-Cell Housing", 7 NYCRR §1701.5(b). [See Exhibit 4]. The witness conceded that the regulation does not specifically state that a double cell period is recalculated when a disciplinary sentence interrupts the initial sixty (60) day period, but said that nonetheless that is the practice as interpreted from the regulations.
Finally, when claimant asked how or why a single cell became available after claimant filed his grievance, when none was available earlier partly because of claimant's pending transfer status, Captain Royce could not explain why, except to reiterate that perhaps one became available. He also agreed that if one calculated the entire time claimant spent in a double occupancy cell from his arrival in Green Haven, it was over sixty (60) days, exclusive of the time spent in SHU.
No other witnesses testified and no other evidence was submitted.
As an initial matter, that portion of the amended claim seeking recovery for an alleged property loss in or about August 2007 is dismissed, as an attempt to boot strap a completely unrelated and untimely cause of action, to a cause of action duly noticed and served. A pleading in the Court of Claims may be amended as of right pursuant to Civil Practice Law and Rules §3025(a) and the Uniform Rules for the Court of Claims [see 22 NYCRR § 206.7 (b)] within the time frames provided in the Uniform Rules, and the amended claim certainly appears to have been served within forty (40) days of service of the answer as required therein.
Nonetheless, the time within which to serve and file either a notice of intention to file a claim, or the claim itself, with regard to an intentional tort cause of action such as the alleged theft of property, had expired, in that more than ninety (90) days had passed since the claim accrued in August, 2007 when the amended claim was served in December 2007. [See Court of Claims Act §10(3-b); Verified Amended Answer ¶¶7,10, Fifth and Eighth Defenses].
Additionally, read as a bailment claim, it does not appear that claimant exhausted the personal property claims administrative remedy provided by DOCS prior to serving the amended claim. Court of Claims Act §10(9), 7 NYCRR Part 1700. Defendant has raised such defense in the amended answer, and raised it at trial as well. [See Verified Amended Answer ¶11, Ninth Defense].
Accordingly, the defendant's motion to dismiss this cause of action in the amended claim, reserved on at the time of trial, is hereby granted, and that aspect of the amended claim is hereby dismissed.
Placement in a double occupancy cell in contravention of DOCS regulations has been likened to a claim of wrongful confinement - a "species" of the tort of false imprisonment [see Gittens v State of New York, 132 Misc 2d 399, 407 (Ct Cl1986)] - which accrues when the confinement ends. [See Thomas v State of New York, UID # 2004-032-048, Claim No. 104288, Motion No. M-67862 (Hard, J., June 16, 2004)]. With regard to this cause of action, the claimant must establish prima facie that ". . . (1) the defendant intended to confine him, (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 (1975), cert denied, 423 US 929 (1975). It is the issue of whether an alleged confinement is consented to or privileged that is the general concern of most claims, and is the concern here.
A large part of the resolution of this claim rests upon the relative credibility of the witnesses, and the weight of the evidence claimant presented to substantiate his claim. Resolving issues of credibility is the province of this Court as the trier of fact. LeGrand v State of New York, 195 AD2d 784, 785 (3d Dept 1993), lv denied 82 NY2d 663 (1993); Newland v State of New York, 205 AD2d 1015 (3d Dept 1994). An important part of that role is observing the behavior and demeanor of witnesses as they testify, assessing the internal consistency of their accounts, and the Court is never bound to credit a particular fact. The testimony of the claimant, who impressed the court as an intelligent and resourceful individual, was only credible in part. He had a tendency to gloss over details where such details might not serve his interest.
Upon review of all the evidence, including listening to Mr. Carlisle and Captain Royce testify and observing their demeanor as they did so, the Court finds that claimant has established by a preponderance of the credible evidence that the defendant wrongfully confined him in violation of DOCS regulations at least in part for a limited period.
It is noted that the pertinent portions of the DOCS regulations concerning eligibility for double cell housing submitted in evidence are the same as those in effect through December 26, 2007. [See Exhibit 4 and 7 NYCRR 1701.5(b)]. These explicitly provide that to be exempted from such placement, as applicable here, an inmate must meet all the following criteria:
"(i) the inmate has been with the department for at least two years following initial reception/classification and transfer to a permanent facility;
(ii) the inmate has had no Tier II or III disciplinary determinations of guilt within the last two years;
(iii) the inmate has not volunteered for double-cell housing (a transfer sought by an inmate may be conditioned upon the inmate volunteering to be housed in a double-cell at the receiving facility); and
(iv) the inmate is not being transferred to Woodbourne Correctional Facility."
The Court credits the testimony concerning the practical application of these prerequisites, as noted by Captain Royce, to the effect that the interruption of time spent in a double bunk cell because of service in SHU as part of a disciplinary sentence, starts the sixty (60) day period anew. Indeed, claimant himself indicated in his own direct testimony that service in keeplock is not counted toward the sixty (60) day limit, and further acknowledged by implication that the counting began again on June 20, 2007, when he returned from SHU, by his testimony that it was only in July or August 2007 that he purportedly started to make inquiries about moving to a single cell (although he did not provide any evidence of such inquiries).
As the only witness providing the DOCS interpretation of the regulations, and in the absence of authority to the contrary, Captain Royce's reading is credited, too, with regard to there being a seniority based, and medical issues based entitlement to placement in a single cell. Such prioritizing has been found at other facilities. [See e.g. Bailey v State of New York, UID # 2004-016-067, Claim No. 105220 (Marin, J., October 22, 2004)].
With regard to the earlier periods, the double cell waiver signed at Auburn on April 5, 2007 [Exhibit 2], as well as the double cell waiver refusal signed at Green Haven on May 11, 2007 [Exhibit 1], then interrupted by claimant's stay in the SHU, constitute a privileged period in conformance with the regulatory scheme, and were essentially consented to by claimant.
Upon his return from SHU, however, a stay for more than sixty (60) days would not be privileged. The grievance stamped as received on September 19, 2007, and assigned a grievance number, does not appear to have been responded to. [Exhibit 3]. Thus the defense of failure to pursue administrative remedies and judicial review, raised in the verified amended answer with regard to this claim (and not actually addressed at trial by defendant in any event), does not lie. [Verified Amended Answer, ¶¶ 9,13, Seventh and Eleventh Defenses]. Regardless, the testimony interpreting the claimant's movement history in Green Haven [see Exhibit A] establishes that claimant was relocated to a single cell on September 21, 2007, ending any wrongful confinement. Based upon the Court's calculations, if claimant's return from SHU to a double bunk cell began on June 20, 2007, the sixty days were up on August 19, 2007. [See Exhibit A]. Staying in a double occupancy cell beyond that period was not privileged, and is compensable.
It is noted that the testimony also established that there is no loss of privilege associated with being placed in a double occupancy cell. An inmate so housed may attend his programs, take advantage of any recreational opportunities, eat outside of his cell, in short, all the privileges associated with an inmate in good standing. Such placement is a result of an unwieldy prison population, and DOCS' managerial response to trying to cope with same. The only deprivation is a further loss of privacy, in a setting renowned for its loss. Accordingly, in terms of damages, only a nominal sum is appropriate. [Cf. Gaiter v State of New York, UID # 2009-029-060, Claim No. 113429 (Mignano, J., October 5, 2009)].
Based on the foregoing, claimant is entitled to damages for the period from August 19, 2007 to September 21, 2007 in the amount of $165.00, for the thirty-three (33) days he was kept in a double occupancy cell that was not privileged.
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.
July 2, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. Quotations are to trial notes or audio recordings unless otherwise indicated.
2. The claim also contains factual allegations concerning lack of medical treatment including an alleged failure to receive a Hepatitis B vaccine because of medical conditions purportedly arising from his housing situation, however no evidence concerning these allegations was presented, resulting in dismissal of any cause of action arising therefrom for failure to establish a prima facie case.
3. Such Directive is also codified at 7 NYCRR §1701.1 et seq.