UID:	2015-018-610
Claimant(s):	PETE AVILES
Claimant short name:	AVILES
Footnote (claimant name) :
Defendant(s):	STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):	120106
Motion number(s):
Cross-motion number(s):
Judge:	DIANE L. FITZPATRICK
Claimant's attorney:	PETE AVILES Pro Se
Defendant's attorney:	ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General
Third-party defendant's attorney:
Signature date:	February 17, 2015
City:	Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an inmate proceeding pro se, alleges that he was wrongfully confined to the Special Housing Unit (SHU) for 82 days. The Defendant answered and asserted one affirmative defense raising privilege and immunity for Defendant's judicial, quasi-judicial, or discretionary determinations and actions. A trial was held on January 14, 2015.

Claimant testified that on March 11, 2011, he was lifting weights at the Gouverneur Correctional Facility (Gouverneur) when he hit himself with a weight breaking his nose. Claimant testified he reported his injury to the sergeant. The sergeant issued Claimant a ticket for fighting and he was sent to the SHU. At the superintendent's hearing on his misbehavior charge, held on March 17, 2011, Claimant was not permitted to call witnesses to refute the allegations, and the photographs taken of his injuries at the infirmary were not submitted. The hearing officer found Claimant guilty of fighting, and Claimant was penalized with 90 days confinement in the SHU along with the attendant losses of privileges: recreation, packages, telephone, and commissary. Claimant was confined in the SHU at Mid-State Correctional Facility.

Claimant appealed the disciplinary finding and it was reversed as of May 23, 2011; no reason for the reversal was provided. Claimant learned of the reversal the following day. He told correction officers the decision was reversed and he should be released. Claimant testified the correction officers stopped feeding him and he became malnourished. He was not released until May 31, 2011. Claimant believed he should have been released within 72 hours of May 23, 2011. The State did not cross-examine Claimant but called Gail Rookey, an Inmate Record Coordinator 2 at Gouverneur Correctional Facility for 15 years. She testified that she was familiar with handling the records for the placement system for inmate movement, also referred to as "in-drafting" or "out-drafting."

Exhibit 1.

Ms. Rookey testified generally to the process by which an inmate is out-drafted. First, a senior correction counselor reviews an inmate's placement needs, such as medical, program, and safety and makes a recommendation for a destination. A review may be conducted by the Inspector General's Office. A class analyst reviews placement for the inmate before a destination is selected. The placement analysis, Ms. Rookey testified, can take between one-to-four days, or in some cases, up to three weeks. Once a destination is determined, it takes at least four days to arrange transportation. The length of time depends upon the destination facility, as facilities further away take longer to arrange because of the need for overnight accommodations.

In discussing Claimant's case more specifically, Ms. Rookey testified that because of the issue of fighting, Claimant was transferred out of Gouverneur for SHU placement. Ms. Rookey testified that a recommendation placement and referral were set in place, based upon the anticipated SHU release date imposed after the superintendent's hearing, approximately June 10, 2011. This placement would have taken into account the need for separation from the other inmates because of the fighting.

Once the administrative reversal and expungement are made, the out-drafting process begins anew. The reversal and expungement are received by email by the Security and Disciplinary Lieutenant's office, where the report is printed and a copy sent to Ms. Rookey's office, Inmate Records. Inmate Records then emails the Senior Correction Counselor and Inmate Payroll which prompts the counselor to place a hold on the existing placement referral and transportation arrangement. The counselor will again review the inmate's needs, make a new referral, and send it to the class analyst for a new placement. This new placement again takes the inmate's needs into consideration. Once placement is found, transportation is arranged, including overnight accommodations at other facilities, if needed, enroute. Ms. Rookey opined that the additional eight days Claimant was in the SHU after his reversal and expungement were reasonable given the out-drafting process she described.

To successfully establish a cause of action for wrongful confinement, a Claimant must show that (1) Defendant confined him; (2) Claimant was conscious of the confinement; (3) Claimant did not consent to the confinement; and (4) the confinement was not privileged (Broughton v State of New York, 37 NY2d 451, 456 [1975]). Although Claimant must assert that the confinement was not privileged (see Donald v State of New York, 17 NY3d 389 [2011]), it is actually Defendant who bears the burden to establish privilege (Hollender v Trump Vil. Coop., 58 NY2d 420, 425 [1983]; Gonzalez v State of New York, 110 AD2d 810 [2d Dept 1985]). Typically, the issue comes down to whether the confinement was privileged, and this case is no different.

In the prison setting, the State's actions in placing Claimant in disciplinary confinement will be found to be privileged where the Defendant has acted in full compliance with its rules and regulations. The discretionary actions and determinations made by correction officials will be protected by absolute immunity as long as they act within the scope of their authority and do not violate the governing rules and regulations (Arteaga v State of New York, 72 NY2d 212, 214 [1988]); Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]; Minieri v State of New York, 204 AD2d 982 [4th Dept 1994]).

The administrative reversal of the disciplinary findings alone, without proof of a violation of non-discretionary rules and regulations, does not establish a wrongful confinement cause of action (see Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]; Holloway v State of New York, 285 AD2d 765 [3d Dept 2001]; Barnes v State of New York, UID No. 2013-015-561 [Ct Cl, Collins, J., Aug. 21, 2013]). Even a violation of a non-discretionary due process rule only removes the protection of immunity (Arteaga v State of New York, 72 NY2d at 221; Amato v State of New York, UID No. 2014-041-038 [Ct Cl, Milano, J., June 26, 2014]; Pittman v State of New York, UID No. 2008-018-623 [Ct Cl, Fitzpatrick, J., May 2, 2008]).

Claimant must also show the violation caused him prejudice or injury (Collins v State of New York, 69 AD3d 46 [4th Dept 2009]; Davidson v State of New York, 66 AD3d 1089 [3d Dept 2009]; Rivera v State of New York, UID No. 2006-028-008 [Ct Cl, Sise, P.J., Feb. 8, 2006]). Showing injury or prejudice can be an unachievable burden, however, where all records and references to this misbehavior report have been expunged (see DuBois v State of New York, 25 Misc 3d 1137 [Ct Cl, 2009]). In DuBois v State of New York, Judge Patti gave the Claimant a rebuttable presumption of causation where the disciplinary record was expunged, shifting the burden to Defendant to show that despite the violation of the regulation the outcome would have been the same (Id.).

Section 253.5 of the Department of Corrections and Community Supervision Rules and Regulations (7 NYCRR § 253.5 [a]) provides: (a) The inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented.

Section 253.6 provides that the "inmate . . . shall be allowed to submit relevant documentary evidence . . . on his behalf." (7 NYCRR § 253.6 [c]).

Although Claimant's pleading adequately alleges a violation of Rule 253.5 [a], Claimant's testimony did not provide the same information. Claimant testified only that he was not allowed to call witnesses at his superintendent's hearing, and the pictures of him in the infirmary were not submitted. He did not assert non-compliance with any rule, he did not name the witnesses he wanted to have testify, and he did not indicate whether the hearing officer provided any reason for the denial of these witnesses. Claimant also provided no indication what information these witnesses would have likely provided. Without at least identifying the witnesses he was denied and their anticipated testimony at trial, Claimant failed to raise any violation of the rules and regulations, or in other words, failed to assert that the State's placement of him in the SHU was not privileged (cf., Donald v State of New York, 17 NY3d 389, 395 [where pleading failed to state a wrongful confinement cause of action because lack of privilege was not asserted]).

As for the hearing officer's failure to permit Claimant to submit his infirmary pictures for consideration, the department regulation requires "relevant" documentary evidence be permitted. Claimant did not indicate that any reason was given for not allowing the pictures to be submitted, however, inherently, what is relevant is discretionary and under Arteaga would be entitled to absolute immunity.

As a result, Claimant has not shown that his confinement from March 11, 2011 until May 23, 2011, was a wrongful confinement.

The issue of Claimant's wrongful excessive confinement, that is, his eight days of continued placement in the restrictive confinement of the SHU after the administrative reversal of the findings of misbehavior is different. Once the authority for this restrictive placement is removed because the underlying findings of misbehavior are reversed, Defendant has a duty to release Claimant from the SHU (see Minieri v State of New York, 204 AD2d 982 [4th Dept 1994]; Ruggiero v State of New York, UID No. 2010-015-187 [Ct Cl, Collins, J., Nov. 1, 2010]; Ramos v State of New York, UID No. 2000-029-017 [Ct Cl, Mignano, J., Sept. 8, 2000]). Defendant's efforts to show that its continued confinement of the Claimant was "reasonable" must fail. The confinement was not shown to be privileged, and the elaborate considerations for out-drafting an inmate, in general, did not substantiate why Claimant was held for an additional eight days (see Malik v State of New York, UID No. 2007-038-557 [Ct Cl, DeBow, J., Sept. 10, 2007]). Defendant presented no evidence Claimant was moved anywhere after eight days, or why he could not be placed in general population at Mid-State pending his out-draft.

Accordingly, the Court finds that the additional eight days specific to Claimant's confinement were not privileged and were not explained. Claimant is, therefore, entitled to damages of $30 per day for the eight days of additional confinement or $240.

To the extent Claimant paid a filing fee, it may be recovered pursuant to Court of Claims Act section 11-a (2). All motions not previously decided are hereby DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

February 17, 2015

Syracuse, New York

DIANE L. FITZPATRICK

Judge of the Court of Claims

Aviles v. State

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Aviles v. State

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Aviles v. State

Aviles v. State

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