|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||PEDRO RODRIGUEZ, pro se|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Christina Calabrese, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 11, 2019|
|See also (multicaptioned case)|
The claimant Pedro Rodriguez ("Claimant" or "Rodriguez"), an inmate who was incarcerated at the Coxsackie Correctional Facility and who has appeared pro se, filed this claim on August 4, 2017. The claim alleges that Rodriguez was detained illegally in keeplock in excess of seventy-two hours and had personal items confiscated between Thursday, August 25 and August 29, 2016, all allegedly in retaliation for grievances he had filed over a period of time prior to August, 2016. A video trial was conducted by the undersigned in Albany, New York on July 31, 2019.
More particularly, Rodriguez testified at trial that at an unspecified time on August 25, 2016 he was taken from his cell and was told it was because there had been a report that he had been in a fight with another inmate. He asserted that he then was examined by a medical professional and brought to a keeplock cell, despite that the examination showed no evidence of bruises, cuts or scrapes. Rodriguez further testified that at some point thereafter he was placed in another cell which was unsanitary, smelled of urine and feces and had no lights. He testified that after approximately an hour he was placed in a different cell. Claimant's testimony that he was not released from keeplock until August 29 was undisputed. Neither Rodriguez' testimony nor his trial evidence specified the time of day at which he initially was placed in keeplock or when he was released.
The defendant ("Defendant" or "State") presented the testimony of one witness, DOCCS Captain Jerold Neigs. Captain Neigs testified that he had no knowledge or memory of the alleged incidents between August 25 and 29, 2016. He did testify that he had replaced a now retired employee, Captain Martin, who had knowledge of the events. A certified copy of Captain Martin's memorandum addressed to "IGP Supervisor Surprenant" dated February 21, 2017 summarizing the investigation of the grievance arising from the alleged events filed by Rodriguez was admitted into evidence (Exhibit A). The memorandum indicated that Rodriguez had been the subject of an investigation of "an alleged unwitnessed fight between inmates" and had been moved off his general housing unit and "placed on investigation hold." The memorandum contains a somewhat confusing passage indicating that since "this inmate was in fact moved multiple times" from August 25 through August 29 it was "a clear indication that there was not a steady time on KeepLock Status as alleged in the grievance." According to the memorandum, Rodriguez was placed in a reception cell on August 29, 2019 pending his transfer to another correctional facility. Captain Martin's memorandum recommended that Claimant's grievance be denied because "no staff malfeasance has been established." Although the memorandum refers to FPMS 17 as an attachment which would establish Rodriguez' cell assignments from August 25 through 29, 2016, that document was not attached to the exhibit provided to the Court.
Captain Neigs testified that Rodriguez was placed in keeplock for his safety and while the validity of the report alleging a fight was investigated and a determination was made as to whether Rodriguez was safe. Throughout his testimony, Captain Neigs referred to and read from a document which he referred to as an "internal movement record." That document was never put in evidence. Captain Neigs did, however, testify that the keeplock commenced on Thursday August 25 at 8:00 p.m., and that Rodriguez was "moved off" keeplock on Monday afternoon August 29, and was returned to his housing unit at 1:55 p.m. At some point thereafter, Claimant was transferred to a reception cell to await transfer to another facility. Captain Neigs admitted that the records revealed that the keeplock stay was "a couple of hours over seventy-two" and was prolonged because there were no executive team members present on the weekend to conclude the investigation. Thus, in accordance with the State's hearsay testimony and admissions, a seventy-two hour limit applied to Rodriguez' keeplock and the seventy-two hours expired at 8:00 p.m. on Sunday, August 28. Thus, according to Defendant's hearsay testimony, Claimant was held for eighteen hours longer than seventy-two hours (from 8:00 p.m. Sunday through 1:55 p.m. Monday). Captain Neigs also presented hearsay testimony admitting that Claimant was placed in a non-functioning cell, but only for twenty minutes rather than one hour to which Claimant testified.
Claimant also alleged that his personal property was removed from his cell during the time period in question and was never returned to him. He presented a receipt for the items he had purchased on August 10, 2019 and which consisted of food (some of which he noted had been consumed or opened), batteries (which he admitted he had used), and soap (Exhibit 9). The claim contains an administrative claim for the lost of property which is dated August 26, 2016. Rodriguez asserts that he never received a decision either granting or denying this claim. The State presented no evidence that his claim had been determined at the administrative level and did not move to dismiss at trial for the failure of Claimant to exhaust his administrative remedies.
In summary, Rodriguez raised three claims: (1) retaliation; (2) wrongful or excessive confinement; and (3) destruction or loss of personal property. Each claim is decided below seriatim.
Since there is no cognizable cause of action for retaliation in the Court of Claims, those claims are dismissed (see Kelly v State of New York, UID No. 2019-038-104 [Ct Cl, DeBow, J., June 20, 2019], citing Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; Brown v State of New York, UID No. 2011-031-509 [Ct Cl, Minarik, J., Sept. 30, 2011]).
WRONGFUL OR EXCESSIVE CONFINEMENT
In order to establish a cause of action for wrongful or excessive confinement a claimant must show that: (1) the State 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 (see Broughton v State of New York, 37 NY2d 451 ; Makas v State of New York, UID No. 2011-048-502 [Ct Cl, Bruening, J., Sept. 30, 2011]). Prison confinement is "privileged to the extent that it was under color of law or regulation" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl, 1986]; see also Floyd v State of New York, UID No. 2018-041-060 [Ct Cl, Milano, J., Sept. 7, 2018]). In other words, confinement in violation of DOCCS regulations is not privileged and gives rise to a claim for wrongful or excessive confinement (see Ames v State of New York, UID No. 2002-030-006 [Ct Cl Scuccimarra, J., Feb. 14, 2002]). " 'When an inmate is kept confined beyond the term directed . . . then the State may be liable in damages, unless such additional confinement is otherwise privileged' " (Hales v State of New York, UID No. 2018-018-959 [Ct Cl, Fitzpatrick, J., Sept. 10, 2018], quoting Sellers v State of New York, UID No. 2011-030-012 [Ct Cl, Scuccimarra, J., May 25, 2011]). It is Defendant's burden to provide legal justification or privilege for any delay in releasing the inmate (see Broughton, 37 NY2d 458).
7 NYCRR 251-1.6 (b) and DOCCS Directive 4932, as it was in effect in 2016, permitted an inmate to be confined to a cell for no more than seventy-two hours "where such action appears reasonably necessary for protection of the inmate." The regulations and directives make no mention of an extension of this period for weekends. As set forth above, Defendant admitted at least eighteen hours of excessive confinement. However, since no record of the length of time is in evidence and hearsay is not completely reliable, the times at which the keeplock confinement began and ended are unclear to the Court. As a result of the Defendant's failure to meet its burden of proof to defend the claim of excessive confinement, the Court finds that the confinement was for four days and that the confinement was privileged for August 25 through August 28, but not for Monday, August 29. Thus, the Claimant is entitled to damages for Monday, August 29 for the entire day.
With respect to the confinement in an admittedly unsanitary cell, the Court finds that the Defendant's hearsay testimony as to the length of time was not reliable. However, since the confinement was, at worst, for one hour, the Court finds that Claimant has not made a claim under the State Constitution for prohibited cruel and inhumane treatment or wrongful confinement with respect to the unsanitary cell (cf, Boggs v State of New York, UID No. 2015-015-097 [Ct Cl, Collins, J., Dec. 9, 2015]).
DESTRUCTION OR LOSS OF PERSONAL PROPERTY
Claimant produced proof at trial that he possessed the claimed property and established the value of the items lost or destroyed by way of receipts dated August 10 and 22, 2016 he admitted those items which he had either opened or consumed prior to August 25. Lost property claims are governed by Court of Claims Act §10 (9) which requires that inmates exhaust their administrative remedies prior to filing a claim with this court. The administrative procedure requires an inmate to file a claim, appeal any adverse determination on that claim and then file a claim with this Court within one hundred twenty days of an adverse determination of the appeal (see 7 NYCRR Part 1700). However, when no determination is rendered, this Court has considered the administrative remedies to have been exhausted for purposes of Court of Claims Act §10 (9) (see e.g. Gagne v State of New York, 14 Misc 3d 1214[A] [Ct Cl, 2006]; Long v State of New York, UID No. 2017-018-852 [Ct Cl, Fitzpatrick, J., Dec. 5, 2017]; Amaker v State of New York, UID No. 2011-049-019 [Ct Cl, Weinstein, J., Dec. 2, 2011]; Joseph v State of New York, UID No. 2007-029-038 [Ct Cl, Mignano, J., Oct. 1, 2007]; Paladino v State of New York, UID No. 2005-036-102 [Ct Cl, Schweitzer, J., Sept. 15, 2005]). Defendant did not contradict any of Claimant's assertions that he did not receive a determination on his inmate property claim.
Receipts for purchase are the best evidence of value (see Taylor v State of New York, UID No. 2016-029-080 [Ct Cl, Mignano, J., Oct. 17, 2016]). Deducting the purchase price of the items consumed or opened, the value of the remaining items is $42.39.
Based on the foregoing, the Court finds Claimant was wrongfully and excessively confined for twenty-four hours and is awarded $40. He is also awarded judgment for property worth $42.39 plus appropriate interest from date of accrual. To the extent Claimant paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a (2). All objections and motions not ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Central Islip, New York
September 11, 2019
Maureen T. Liccione
Judge of the Court of Claims
September 11, 2019
Central Islip, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims