New York State Court of Claims

New York State Court of Claims
WYNDER v. THE STATE OF NEW YORK, # 2017-029-096, Claim No. 127081


The pro se claim for wrongful confinement of claimant at Shawangunk Correctional Facility was tried by video on November 8, 2017. The court found defendant liable for 14 days of wrongful confinement based on undisputed prima facie evidence that claimant was not released until 14 days after administrative reversal of his disciplinary hearing.

Case information

UID: 2017-029-096
Claimant short name: WYNDER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127081
Motion number(s):
Cross-motion number(s):
Claimant's attorney: GREGORY WYNDER, PRO SE
By: Christina Calabrese, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 19, 2017
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The claim for wrongful confinement was filed pro se on November 19, 2015. The claim arose from an administrative adjudication of guilt after a Tier III disciplinary hearing on an inmate misbehavior report charging claimant with four violations of Department of Corrections and Community Supervision ("DOCCS") Rules for an altercation with a correction officer at Shawangunk Correctional Facility ("Shawangunk") on July 12, 2015. Claimant seeks damages for 97 days of confinement in the Special Housing Unit ("SHU").

Trial of this claim was conducted by video on November 8, 2017. Claimant testified on his own behalf and did not call any other witnesses. Defendant called Captain Michael Bertone. Claimant did not submit any exhibits. Defendant's exhibits admitted by the court included an inmate misbehavior report package (Exh. A), a disciplinary history (Exh. B), and a disciplinary extension request (Exh. C).

Claimant testified that on July 8-10, 2015, he was in keeplock after being informed that he was under investigation. He was not fed for three days and complained about not getting his tray. He was taken to SHU on July 12, 2015 and received a ticket on July 13, 2015 for threats and refusing a direct order. Claimant's hearing started July 21, 2015, and he was adjudicated guilty. Claimant appealed and his hearing was reversed and expunged on October 2, 2015, but he was not released from SHU until October 16, 2015.

On cross-examination, claimant testified that he had been sent for mental health evaluations, but he never received copies of the extensions, and they were not put on the record at the hearing.

Captain Michael Bertone testified that he had been a correction officer for 23 years, and was the hearing officer at claimant's superintendent's hearing. He recognized Exhs. A, B and C as records of the DOCCS. The records show that claimant was sent to the Office of Mental Health ("OMH") on July 16, 2015, and returned to Shawangunk on July 20, then back to OMH on July 24 and again returned to the facility on July 28. Extensions were requested and granted, with the last one providing that the hearing was to be completed within six days of claimant's return to Shawangunk. His memory was refreshed with the inmate locator. Claimant was sent to OMH from August 4 through 10 and August 18 through 25. Captain Bertone considered claimant's mental health at the hearing.

In order to establish a prima facie case of wrongful confinement, a claimant must show "(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 sub nom. 423 US 929 [1975]). Here, claimant established that defendant intended to confine him, he was conscious of the confinement and he did not consent to the confinement. The only issue is whether claimant established that the confinement was not privileged.

"Notably, '[i]t is defendant and not claimant who bears the burden of proving that confinement was privileged' " (Ifill v State of New York, 46 Misc 3d 1228 [A] [Ct Cl 2013] quoting Nelson v State of New York, 20 Misc 3d 1125 [A] [Ct Cl 2008], affd 67 AD3d 1142 [3d Dept 2009]; see Gonzalez v State of New York, 110 AD2d 810, 812 [2d Dept 1985], appeal dismissed 67 NY2d 647 [1986]). The State's restrictive confinement of an inmate is privileged if it was done in accordance with DOCCS regulations (see Arteaga v State of New York, 72 NY2d 212, 214 [1988]; see generally Tarter v State of New York, 68 NY2d 511, 518-519 [1986]; see also Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; see also Soto v State of New York, UID No. 2016-032-512 [Ct Cl, Hard, J., Dec. 20, 2016]). "Where DOCCS employees have conducted the disciplinary process in accordance with the governing statutes and regulations, their actions involve discretionary conduct that is quasi-judicial in nature and absolutely immune from liability" (Porter v State of New York, UID No. 2017-018-816 [Ct Cl, Fitzpatrick, J., May 4, 2017], citing Arteaga at 214]). This immunity attaches even if the hearing examiner's determination is reversed by administrative appeal or Article 78 proceeding (see Arteaga at 215). However, actions of employees exceeding the scope of their authority or violating applicable governing statutes and regulations are not immunized if in doing so they violated an inmate's right to due process (id.; see Davidson v State of New York, 66 AD3d 1089 [3d Dept 2009]; see also Lamage v State of New York, UID No. 2015-044-002 [Ct Cl, Schaewe, J., Apr. 17, 2015]; Gifford v State of New York, UID No. 2015-049-024 [Ct Cl, Weinstein, J., March 31, 2015]; Wilson v State of New York, UID No. 2014-015-581 [Ct Cl, Collins, J., May 12, 2014]).

Where an inmate is confined pending a disciplinary hearing, such hearing must be commenced within seven days of said confinement, and completed within 14 days following the writing of the misbehavior report unless the DOCCS Commissioner or his or her designee authorizes an extension therefor (see 7 NYCRR 251-5.1 [a] and [b]). Claimant established that the incident took place on July 12, 2015, he received the ticket on July 13, the hearing began eight days later on July 21, and ended July 30, 18 days after the incident. Claimant's evidence establishes that defendant violated the regulation. However, defendant met its burden to show that it sought and obtained extensions pursuant to the same regulation, establishing that claimant's confinement from July 12, 2015 until July 30, 2015, did not violate the regulation and was privileged.(1)

Defendant presented admissible evidence (Exh. C) that claimant was sent to the mental health facility on July 16; an extension of the hearing start was granted on July 17, before expiration of the seven-day limit of 7 NYCRR 251-5.1 (a), for the hearing to "commence within 3 days and complete within 10 days of [claimant's] return from MHU/OBS"; claimant was returned to SHU on July 20; and the hearing started on July 21, within the three days granted by the extension; claimant was sent back to the mental health facility on July 24; within the ten days granted by the first extension, a second extension granted on July 27 was for the hearing to "complete within 6 days of return from MHU/OBS"; claimant was sent back to SHU on July 28; and the hearing was completed on July 30, within the six days granted by the extension.

Claimant did establish, however, that defendant violated the additional requirement in 7 NYCRR 251-5.1 (b) that, "the record of the hearing should reflect the reasons for any delay or adjournment, and an inmate should ordinarily be made aware of these reasons unless to do so would jeopardize institutional safety or correctional goals." Claimant testified that he never received a copy of the extensions and they were not on the record of the hearing. Defendant did not present any evidence rebutting claimant's testimony. To lose immunity, "[t]he rule or regulation must implicate minimal due process protections . . ." (Amato v State of New York, UID No. 2014-041-038 [Ct Cl, Milano, J. June 26, 2014]). Claimant has not met his burden to establish prima facie that the regulatory requirement implicates due process rights, or that its violation affected the outcome of the hearing causing actual prejudice or injury (Porter v State of New York, UID No. 2017-018-816 [Ct Cl, Fitzpatrick, J., May 4, 2017]; see Brown v State of New York, UID 2013-015-460 [Ct Cl, Collins, J., Dec. 19, 2013], citing Collins v State of New York, 69 AD3d 46 [4th Dept 2009]). Claimant's confinement was not impacted by the requirement that an extension be put on the record and that claimant be made aware of it.

Claimant has met his burden though to show prima facie that he was wrongfully confined from October 2-16, 2015. He testified that his hearing and adjudication of guilt were reversed on appeal on October 2, 2015, but he was not released from SHU until October 16, 2015. Defendant does not dispute this fact, and did not submit any evidence that the confinement was "otherwise privileged." "Where a finding of misbehavior is reversed after an administrative appeal or Article 78 proceeding, and there is no other regulatory authority to hold an inmate in restrictive confinement, discretionary conduct is not involved and continued confinement is not privileged" (Porter v State of New York, UID No. 2017-018-816 [Ct Cl, Fitzpatrick, J., 2017] [granting summary judgment for confinement after reversal by administrative appeal]). The burden is on defendant to come forward with the reason for the delay (see Minieri v State of New York, 204 AD2d 982 [4th Dept 1994]; see also Ruggiero v State of New York, UID No. 2010-015-187 [Ct Cl, Collins, J., Nov. 1, 2010]).

Accordingly, defendant is liable for the claim of wrongful confinement for a period of 14 days and shall pay $10.00 per day for a total of $140.00. Defendant is otherwise not liable. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act 11-a (2). The Clerk of the Court shall enter judgment accordingly.

December 19, 2017

White Plains, New York


Judge of the Court of Claims

1. There is no reason for the court to consider other bases on which to find the confinement authorized.