New York State Court of Claims

New York State Court of Claims
PORTALATIN v. THE STATE OF NEW YORK, # 2018-038-105, Claim No. 120745


Confinement in a SHU after being found guilty of inmate misbehavior was privileged up until disciplinary finding was administratively reversed due to uncertainty about claimant's guilt of the charges. However, defendant did not demonstrate that continued confinement in the SHU after the administrative reversal was privileged, and claimant is awarded damages in the amount of $180.00 for six days spent in SHU after administrative reversal.

Case information

UID: 2018-038-105
Claimant short name: PORTALATIN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 120745
Motion number(s):
Cross-motion number(s):
Claimant's attorney: CARLOS PORTALATIN, Pro se
Defendant's attorney: ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 29, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for wrongful confinement in the Special Housing Unit (SHU) at Green Haven Correctional Facility (CF) for five months commencing on May 20, 2011. The trial of this claim was conducted on November 30, 2017 at Green Haven CF in Stormville, New York. Claimant, whose native language is Spanish, presented his own testimony through a duly sworn interpreter; defendant called Correction Officer (CO) Glenn Trombly and Supervising Offender Rehabilitation Counselor (SORC) Sylvia Santana as witnesses, whose testimony was translated to Spanish by the interpreter. Claimant offered nine exhibits that were received into evidence; defendant offered one exhibit that was received in evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence, the documentary evidence, and the arguments of the parties at trial, the Court concludes that

claimant was unlawfully confined in SHU for six days.


Claimant was an inmate at Green Haven CF on May 20, 2011 when CO Lester authored an Inmate Misbehavior Report (IMR) charging him with possessing a weapon in violation of Rule 113.10 (Claimant's Exhibit 3). The IMR states that "while searching G-Block during a facility frisk, I CO Lester found (1) 4 3/4" long by 1/4" diameter chisel type weapon in the cell track of cell G223 which houses [claimant]. The weapon was accessible to [claimant] from his cell" (id.).(1) Claimant was immediately confined to SHU in advance of the Tier III hearing. An Unusual Incident (UI) Report completed after the incident states that "[CO] Lester recovered one metal chisel 4-3/4 inch x inch. Found in the cell track of G-233 [sic] housing [claimant][.] [Claimant] admitted to SHU-5" (Claimant's Exhibit 4). Claimant testified that the IMR also incorrectly identified his cell number, but review of the document reveals that it recites claimant's cell number as G-223 (see Claimant's Exhibit 3).

Claimant testified that on May 20, 2011, Green Haven CF was under lock down and he was in his cell when two COs came to his cell and searched him and his cell, that they found nothing, and gave him a contraband receipt indicating that no contraband was found (see Claimant's Exhibit 1 [bottom receipt]). Claimant testified that approximately 30 minutes later other COs came by his cell with a flashlight and a wire and when they checked the outer part of his cell with the wire they heard something that made a clicking sound, which prompted them to call someone with a drill. Claimant testified that the mechanism on top of the cell door was subsequently opened, which was not easy to do and something only a mechanic could do, and the COs found a tool that was left up there. They placed the tool in a plastic bag as evidence, and took claimant out of his cell and handcuffed him. Claimant testified that the tool was not accessible to him, that he had never touched a weapon while incarcerated and that he proclaimed his innocence to the COs, only to be told to "shut up," that they were taking him to "the box" and that he could "explain it to the judge."(2) Claimant testified that he was thereafter taken to the SHU.

The Tier III disciplinary hearing was conducted by Hearing Officer (HO) B. Levine and was commenced on May 25, 2011 and completed on July 1, 2011. The following witnesses testified: (1) claimant; (2) CO Lester and three other COs; and (3) Vocational Supervisor Ryan. Present at the hearing was Correction Counselor (CC) Cruz who served as a translator for claimant. No audio recording or written transcript of the hearing were received into evidence.(3)

Claimant testified that at his Tier III hearing he questioned why he was charged since the tool was found outside his cell and approximately 60 people in the gallery had access to the location, that he requested to see the evidence against him and that he was told by the HO that he needed to prove his innocence. Claimant testified that he was provided with an inmate assistant from "vocational" who told him that tools at Green Haven CF have serial numbers on them, that the tool that was recovered was so old that it did not have a serial number on it, and that they checked the facility tool inventory and with outside contractors and that no tools were missing within the previous three years. Claimant further testified that his cell door would not have been able to close had the tool been present in the mechanism from which it was allegedly recovered, although he did not know if this last fact was put into evidence at the hearing. Claimant testified that the translator at the hearing was from Panama and did not properly translate and did not assist him at the hearing. Claimant wrote to the Commission on Corrections asserting that the "translator is speaking a different type of Spanish than [claimant]," to which the Green Haven CF Superintendent responded by memorandum that if he had "claims regarding the effectiveness of the translator, [he] should advise the [HO] who will consider the matter" (Claimant's Exhibit 2). SORC Santana testified that if an inmate has a problem with a translation or translator at a hearing they can make an objection on the hearing record.

At the conclusion of the hearing, HO Levine found claimant guilty of violating Rule 113.10, and assessed him a penalty of five months in SHU and loss of packages, commissary and phones, with one month suspended, for a total of four months, retroactive to May 20, 2011 through September 20, 2011, and four months loss of good time. HO Levine's determination was based upon the IMR, the testimony of the witnesses, the UI report and accompanying documents that were generated in relation to the incident, photographs and a physical inspection of "a cell track" (see Defendant's Exhibit A, p.39). HO Levine found that "substantial evidence" supported his finding of a violation of Rule 113.10, and that "[a] physical inspection of a cell track together with the testimony leads [him] to find that no inmate in a neighboring cell could have put the weapon in the track" and that "a porter or another inmate would have to reach up through [claimant's] cell bars to place such a weapon there," which was "highly unlikely" (id.). Further, HO Levine found the "cell track to be in the possession and control of [claimant] and there is no evidence that this chisel was left there accidentally by a repairman" (id.).

Claimant appealed HO Levine's disposition, arguing that he was denied due process because CC Cruz failed to fully and accurately translate at the hearing and he was not allowed to present documentary evidence, and that the evidence did not support the determination (id., at pp.13-25; Claimant's Exhibit 9). Claimant testified that he wrote his appeal in Spanish and that it was translated to English by someone in the library. On September 14, 2011, HO Levine's determination was reversed and expunged on the ground that "circumstances surrounding incident raise questions as to [claimant's] culpability" (Defendant's Exhibit A, p.1). The instant claim alleges that CC Cruz violated his due process rights because his translation during the hearing was deficient, that claimant could not properly defend himself due to a contradiction between the IMR and a "definition created by CO Lester" at the hearing, that the HO's disposition relied upon errors by omission, and that CO Lester issued a false IMR (id., p.5, at  5-8).

Claimant testified that he was not released when the appeal was decided, that he was given the decision the day before he was scheduled to be released and that he served his entire term. Claimant testified that he spent 180 days in SHU when he was released, and that when he was facing charges the law was that for every three days spent in SHU, one day is deducted and that he received no such deduction. Although the Court received a Department of Corrections and Community Supervision (DOCCS) document that demonstrates that claimant was transferred to the SHU on May 20, 2011 (see id., at p.82), there is no documentation of the date of his release from SHU. The verified claim alleges that claimant was released from SHU fourteen days after HO Levine's determination was reversed and expunged (see id., p.5, at 9), or on September 28, 2011, 131 days after he was initially confined to the SHU on May 20, 2011.

Claimant testified that he was depressed during his confinement in SHU, that he could not sleep well, that he was lonely due to lack of human interaction, and that the hardest part of the experience was that he was confined knowing that he was innocent. Claimant testified that the meal size in SHU was too small and the food was not hot, that he was denied cosmetics, that he had nothing to read except for books from the library which were often missing pages, and that he had no access to television or music. CO Trombly testified that while inmates at the Green Haven CF SHU were single-bunked in 2011, they were not lacking in human interaction as they could interact with religious clergy and staff as they made rounds, and could talk with inmates in neighboring cells while they were in their cell or during the outdoor exercise period when they were in their exercise pens. CO Trombly further testified that in 2011, inmates at Green Haven CF had no access to television, but that after 30 days of good behavior in the SHU an inmate could earn headphones to plug into the facility audio system jacks to listen to music.


The elements of a cause of action for unlawful confinement are "that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged" (Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State of New York, 37 NY2d 451, 456 [1975] cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). The first three elements of this cause of action are clearly established by the uncontroverted evidence of claimant's confinement in SHU and denial of his privileges from May 20, 2011 until his release, and the evidence that he was aware of and did not consent to the confinement. Thus, defendant's liability for claimant's confinement turns upon whether the confinement was privileged.

The confinement of an inmate is privileged if it was accomplished in accordance with DOCCS regulations (see Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]). Where defendant's "employees act under the authority of and in full compliance with the governing statutes and regulations (Correction Law  112, 137; 7 NYCRR parts 250-254), their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]). Such immunity does not attach, however, where there has been a violation of an inmate's right to due process (see id., at 221).

At the close of claimant's case, defendant moved to dismiss the claim on the ground that defendant is entitled to absolute immunity because there was no evidence that defendant's employees violated any rules or regulations in relation to claimant's disciplinary matter. Claimant argued that he proved his innocence and that defendant's agents could not possibly have proven that he was guilty. The Court reserved decision on defendant's motion, which will now be granted in part as to claimant's confinement prior to the reversal of HO Levine's disposition.

At trial, claimant essentially argued that he was innocent of the charges and made no specific argument that defendant's agents violated DOCCS regulations. As decisional law makes abundantly clear, vindication on the grounds that the charges lacked evidentiary support is not sufficient to sustain a finding that the confinement was not privileged. Rather, claimant must prove that defendant's agents failed to comply with DOCCS regulations and violated claimant's due process rights. Although his disciplinary proceeding was administratively reversed due to questions about claimant's guilt, that alone is not enough to subject defendant to liability. While the claim and the evidence adduced at trial present facts that may support due process violations, i.e. the failure of the CC Cruz to properly translate, that claimant was not allowed to present documentary evidence, and that the IMR did not provide claimant with notice of the charges against him, the preponderance of the evidence does not establish that defendant's agents violated any DOCCS regulations, for the reasons that follow.

DOCCS regulations provide that non-English speaking inmates must be provided with a translator who shall be present at the hearing (7 NYCRR 254.2). While a translator's translation services may be so inadequate as to constitute ineffective assistance, claimant's assertions that CC Cruz did not properly translate, without more, is insufficient to prove that Cruz provided ineffective assistance. Notably, claimant has not submitted an audio recording of the hearing or a copy of the hearing transcript, nor has he offered other evidence - expert or otherwise - that the translation services were inadequate or that he objected to the quality of the translation during the hearing. Although DOCCS regulations provide that an inmate defending against an IMR "shall be allowed to submit relevant documentary evidence or written statements on his behalf" (7 NYCRR 253.6 [c]), and claimant argued in his appeal that he was denied the right to present documentary proof at the hearing, claimant adduced no proof as to what documents he was not permitted to introduce at the hearing. Finally, while DOCCS regulations require an IMR to contain "written specification of the particulars of the alleged incident of misbehavior involved" (7 NYCRR 251-3.1 [c] [1]), which may be violated if the IMR is not sufficiently particularized, and claimant testified that the IMR improperly identified his cell number, both English and Spanish written versions of the IMR correctly identify claimant's cell number as G-223 (see Defendant's Exhibit A, p.27-28). Therefore, the evidence at trial does not demonstrate that DOCCS officials violated any regulatory provision or due process right in this disciplinary matter, and thus, claimant's confinement in the SHU was privileged until the determination of guilt was administratively reversed.

An administrative reversal of an inmate's disciplinary determination gives rise to a ministerial duty to release the inmate from disciplinary confinement, and "[w]hen an inmate is kept confined beyond the term directed in a disciplinary disposition, or beyond the reversal and expungement of same, then the State may be liable in damages, unless such additional confinement is otherwise privileged" (Sellers v State of New York, UID No. 2011-030-012 [Ct Cl, Scuccimarra, J., May 25, 2011]), and defendant must provide legal justification for any delay in releasing the inmate (see Minieri v State of New York, 204 AD2d 982 [4th Dept 1994]; Gittens v State of New York, 132 Misc 2d 399, 406 [Ct Cl, 1986]; Fanelli-Cressman v State of New York, UID No. 2015-018-644 [Ct Cl, Fitzpatrick, J., Oct. 6, 2015]). Here, defendant offered no proof or argument that claimant's continued confinement in the SHU and restriction of privileges after the administrative reversal was privileged or otherwise authorized (cf. 7 NYCRR  251-1.6), and the Court credits claimant's testimony that he was released from SHU on the day he was scheduled to be released, which was September 20, 2011.(4) Because his disciplinary determination was rendered on September 14, 2011, and defendant has not offered any evidence of why he remained in the SHU beyond that date, the Court finds that claimant was unlawfully confined and that defendant is therefore liable to claimant for wrongful excessive confinement in SHU and the loss of privileges for a period of six days.

"As a general rule, the measure of damages for [wrongful confinement] is such a sum as will fairly and reasonably compensate the injured person for injuries caused by the defendant's wrongful act" (Hallenbeck v City of Albany, 99 AD2d 639, 640 [3d Dept 1984]). Such damages may include noneconomic damages for mental anguish (see 2A NY PJI2d 3:5, III (A), at 53 [2018]), and claimant offered proof of some mental anguish. The Court finds the appropriate quantum of compensation to be $30.00 per day for the six days that claimant was wrongfully confined in SHU (with denial of privileges) (see Rodriguez v State of New York, UID No. 2014-048-534 [Ct Cl, Bruening, J., Mar. 31, 2014]; Davidson v State of New York, UID No. 2015-018-649 [Ct Cl, Fitzpatrick, J., Oct. 13, 2015]), for a total sum of $180.00.


Claimant has proven his claim of unlawful excessive confinement by a preponderance of the credible evidence, and is awarded damages in the amount of one hundred and eighty dollars ($180.00). To the extent that claimant has paid a filing fee, it may be recoverable pursuant to Court of Claims Act 11-a (2).

Any motions not previously ruled upon are hereby DENIED.

The Chief Clerk of the Court of Claims is directed to enter judgment in accordance with this Decision.

1. An IMR in Spanish was issued to claimant as well (see Defendant's Exhibit A, p.28).

2. Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.

3. Claimant testified that he had obtained a copy of the audio recording of the Tier III hearing to prosecute his appeal of HO Levine's disposition, as discussed in greater length below.

4. Claimant also testified that he served 180 days in the SHU, but that evidence is not credited because it would calculate to a release date in mid-November of 2011, which is clearly inconsistent with all the other evidence.

March 29, 2018

Saratoga Springs, New York


Judge of the Court of Claims