New York State Court of Claims

New York State Court of Claims
THOMAS v. STATE OF NEW YORK, # 2018-038-533, Claim No. 123148, Motion No. M-91560, Cross-Motion No. CM-91561


Claimant's and defendant's dueling motions for summary judgment on claim for 26 days of wrongful excessive confinement in SHU both granted in part and denied in part. Defendant's confinement of claimant was privileged for 22 days, but in the absence of an extension of the date to complete the Tier III hearing after the 22nd day, the continued confinement of claimant in the SHU for an additional four days was not privileged, and defendant is liable to claimant for damages for the four days spent in SHU rather than in keeplock.

Case information

UID: 2018-038-533
Claimant(s): JOHN THOMAS
Claimant short name: THOMAS
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123148
Motion number(s): M-91560
Cross-motion number(s): CM-91561
Claimant's attorney: JOHN THOMAS, Pro se
Defendant's attorney: ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Michael Krenrich, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 6, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant seeks monetary compensation for 26 days of allegedly wrongful confinement in a special housing unit (SHU) in a State correctional facility. Claimant moves and defendant cross-moves for summary judgment on the claim.(1) For the reasons that follow, each parties' motion will be granted in part and denied in part.

On May 12, 2013, claimant was incarcerated at Eastern NY Correctional Facility (CF) when he was charged in an Inmate Misbehavior Report (IMR) with violations of three disciplinary rules arising from an alleged fight (see Claimant's Exhibit A1), which were to be addressed in a Superintendent's (Tier III) hearing. Claimant was confined in the SHU at Eastern CF pending the Tier III hearing. Later that same day, claimant was involved in another incident that led to a Tier II disciplinary proceeding that was completed on May 31, 2013 (see Defendant's Exhibit F). Claimant was given a disciplinary sanction that included 30 days in keeplock and loss of certain privileges, which he served from May 31 to June 30, 2013 (see id.). This disciplinary proceeding and sanction are not at issue in this claim, except for the fact that claimant was subject to the penalty of keeplock from May 31 to June 30, 2013.

The following timeline of events - all in 2013 - and rules of timeliness relating to the Tier III proceeding are undisputed:

- May 12 - claimant enters SHU following Tier III IMR;

- May 19 - Tier 3 hearing must be commenced absent an approved extension in accordance with 7 NYCRR  251-5.1 (a);

- May 20 - Tier III hearing timely commenced due to extension granted on May 17 because hearing officer was unavailable (see Defendant's Exhibit B);

- May 22 - Claimant transferred to Office of Mental Health (OMH) facility at Downstate CF for observation, defendant asserts that extension was obtained to commence an complete hearing within 5 days of claimant's return to Eastern CF (see Defendant's Exhibit B, p.2);

- May 29 - Claimant returns to Eastern CF SHU;

- June 3 - Date for completion of Tier III proceeding (if extension was granted);

- June 6 - Request for the extension denied as untimely (see Claimant's Exhibit C);

- June 7 - Claimant released from SHU to keeplock.

The claim asserts that defendant is liable to claimant because the disciplinary hearing that was commenced on May 20, 2013 was not timely because that date was more than 7 days after May 12, the date of the IMR. In support of his motion for summary judgment, claimant asserts that:

"My confinement was in direct violation of [provisions of 7 NYCRR]. The hearing officer did not act within the scope of his authority/discretion when he released me from SHU without disposing of the Tier III misbehavior report according to law. My confinement was not otherwise consensual and was a conscious and deliberate act which has caused me to remain under Mental Health observation and treatment to date"

(Claimant's M-91560, p.1).(2) He seeks compensation for unlawful confinement from May 12, 2013 to June 7, 2013, a period of 26 days. Defendant opposes claimant's motion and supports its cross motion with the contention that claimant's confinement was privileged and therefore not unlawful, except for the 4 days of SHU confinement beyond June 3, 2013, the expiration date of the extension that was granted due to claimant's transfer to the OMH satellite at Downstate CF (see Defendant's CM-91561, p.3).

It is well-established that a party moving for summary judgment bears the initial burden of establishing his right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). A movant for summary judgment on a cause of action for wrongful confinement must establish prima facie the elements of the cause of action: that there was "(1) an intentional confinement (2) of which plaintiff was conscious and (3) to which plaintiff did not consent, and (4) that was not otherwise privileged" (Guntlow v Barbera, 76 AD3d 760, 762 [3d Dept 2010], appeal dismissed 15 NY3d 906 [2010], citing Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom. Schanbarger v Kellogg 423 US 929 [1975]; see also Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010]). Here, the first three elements of the cause of action are not in dispute, and accordingly, the parties' motions turn on whether privilege attached to any period of claimant's confinement in the SHU, that is, whether the confinement was accomplished in accordance with the regulations of the Department of Corrections and Community Supervision (DOCCS) (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]).

Claimant does not assert that there was not reasonable grounds to confine him in the SHU on May 12, 2013 and while his Tier III IMR was pending (see 7 NYCRR  251-1.6 [a], 301.3 [a] [i]). Privilege would attach to claimant's continued confinement in the SHU if the hearing was commenced within 7 days of May 12 or, no later than any authorized extension date (see 7 NYRR  251-5.1 [a]). As noted above, the claim asserts that the Tier III hearing was commenced on May 20, 2013, and that the hearing officer stated that "this is a late hearing" (see Claim No. 123148; Defendant's Exhibit C). However, as also noted above, defendant has demonstrated that a request to extend the date for commencement of the hearing to May 20, 2013 had been granted (see Defendant's Exhibit B). Thus, the commencement of the Tier III proceeding was not untimely, and defendant's confinement of claimant in the SHU remained privileged.

It is also required that a Tier III hearing be completed within 14 days of the date of the IMR, unless an extension has been authorized (see 7 NYCRR  251-5.1 [b]). Defendant has demonstrated that an extension was granted to require that claimant's hearing be completed within 5 days of his return from OMH observation, which the parties do not dispute occurred on May 29, 2013 (see Defendant's Exhibit E), and that the hearing was thus required to be completed by June 3, 2013. Defendant appropriately concedes, however, that the request for a further extension on June 6, 2013 was denied, and that its confinement of claimant in the SHU beyond June 3, 2013 was not privileged. Claimant was released from the SHU to keeplock on June 7, 2013, and accordingly, the Court concludes that defendant is liable to claimant for 4 days of excessive confinement in SHU.

If the parties are unable to agree to a measure of damages for the 4 days that claimant was confined in SHU instead of keeplock, a trial on the issue of damages, to be conducted in Albany, New York, will be scheduled. Accordingly, it is

ORDERED, that claimant's motion for summary judgment is GRANTED IN PART, and defendant is liable to him for four days of confinement in the special housing unit, and it is further

ORDERED, that claimant's motion is DENIED in all other respects, and it is further

ORDERED, that defendant's cross motion for summary judgment is GRANTED IN PART, and the claim is dismissed to the extent that it asserts wrongful confinement from May 12, 2013 through June 3, 2013, and it is further

ORDERED, that defendant's cross motion is DENIED in all other respects.

April 6, 2018

Saratoga Springs, New York


Judge of the Court of Claims

Papers considered:

(1) Claim No. 123148, filed August 27, 2013;

(2) Verified Answer, filed September 23, 2013;

(3) Daily Report, dated December 21, 2017 and filed January 19, 2018;

(4) Claimant's Motion Number M-91560, sworn to September 15, 2017 and filed

December 21, 2017, with Exhibits A-F (including A1 and A2);

(5) Defendant's Cross-Motion Number CM-91561, dated October 10, 2017 and filed

December 21, 2017, with Exhibits A-F;

(6) Claimant's Response, sworn to November 6, 2017 and filed December 21, 2017.

1. The parties engaged in discussions and exchanged documents in an effort to settle the claim. Their efforts were ultimately unsuccessful, and they waived notices of motions and stipulated that the documents exchanged during that process serve as their motions for summary judgment (see Daily Report of Hon. W. Brooks DeBow, dated December 21, 2017 and filed January 19, 2018).

2. To the extent that claimant contends that defendant is liable to him for the hearing officer's failure to dispose of the IMR, he offers no legal basis for such liability, and his own submission demonstrates that the Tier III IMR was dismissed and that no institutional records pertaining to it exist (see Claimant's Exhibits E, F). Thus, even if a failure to dismiss a disciplinary proceeding could give rise to liability, claimant has failed to demonstrate facts that would warrant judgment in his favor.