Opinion
# 2017-053-553 Claim No. 128749 Motion No. M-90392
09-18-2017
KEVIN THURMOND v. THE STATE OF NEW YORK
KEVIN THURMOND, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Carlton K. Brownell, III, Esq. Assistant Attorney General
Synopsis
Pro se claimant's motion for summary judgment on claim is granted, in part, to the extent that the State is liable for five days of wrongful confinement.
Case information
| UID: | 2017-053-553 |
| Claimant(s): | KEVIN THURMOND |
| Claimant short name: | THURMOND |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128749 |
| Motion number(s): | M-90392 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | KEVIN THURMOND, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Carlton K. Brownell, III, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 18, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se claimant Kevin Thurmond alleges in claim no. 128749 that he was wrongfully confined in the Special Housing Unit (SHU) at Gowanda Correctional Facility (Gowanda) for a pre-disciplinary hearing confinement period of twelve (12) days as a result of a misbehavior report charging him with creating a disturbance, interference with employee, harassment, and refusing a direct order. Claimant moves for summary judgment on his claim for damages for the entire 12 day period of his pre-hearing confinement. Defendant opposes the motion.
In order to establish a cause of action for wrongful confinement, a claimant must show: 1) that the defendant intended to confine him; 2) that the claimant was conscious of the confinement; 3) that claimant 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 Kellog, 423 US 929 [1975]). It is not disputed that claimant was confined in SHU, was conscious of the confinement and did not consent to the confinement. The remaining issue is whether the confinement was not otherwise privileged.
The Court of Appeals in Arteaga v State of New York, 72 NY2d 212[1988] held that the State of New York has immunity in the area of prison discipline when its employees' conduct is in compliance with the statutes and regulations of the Department of Corrections and Community Supervision (DOCCS), and their actions constitute discretionary conduct (Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]; Davis v State of New York, 262 AD2d 887 [3d Dept 1999]). Pursuant to DOCCS' regulation 7 NYCRR § 301.3 (a) (1), "an inmate who is awaiting initial appearance before or determination of a disciplinary hearing or superintendent's hearing" may be detained in SHU. Further, pursuant to DOCCS' regulation 7 NYCRR § 251-5.1 (a), when an inmate is confined in SHU pending a disciplinary hearing, as in this case, "the hearing must be commenced as soon as is reasonably practicable . . . , but, in no event may it be commenced beyond seven days of said confinement without authorization of the commissioner or his designee."
The charges in the misbehavior report (Defendant's Exhibit A) stem from an incident which occurred on August 8, 2016. The disciplinary hearing was conducted on August 20, 2016, 12 days later. During the hearing, the charges were dismissed based on claimant's objection to the timeliness of the hearing. The merit of the charges were not ruled upon.
The initial seven days of claimant's confinement to SHU following the issuance of a misbehavior report are privileged as defendant was authorized by DOCCS' regulation 7 NYCRR § 251-5.1 (a) to confine claimant for seven days preceding the disciplinary hearing. Defendant failed, however, to establish that the commissioner or his designee authorized claimant's confinement for the additional five days claimant was confined in SHU before his hearing was conducted. Thus, defendant is liable for the five unjustified additional days of claimant's confinement to SHU awaiting his hearing (see generally Minieri v The State of New York, 204 AD2d 982 [4th Dept 1994]); Green v The State of New York, UID No. 2010-015-156 [Ct Cl, Collins, J., June 21, 2010]).
Based on the foregoing, claimant's motion no. M-90392 for summary judgment on claim no. 128749 is granted, in part, to the extent that defendant is liable to claimant for five days of wrongful confinement. Claimant is awarded $25.00 per day for the five days of wrongful confinement, for a total of $125.00, as reasonable and fair compensation.
To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.
September 18, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and supporting affidavit of Kevin Thurmond sworn to May 7, 2017, with annexed Exhibits A-B; and 2. Opposing affirmation of Assistant Attorney General Carlton K. Brownell, III, Esq. dated June 9, 2017, with annexed Exhibits A-B.