New York State Court of Claims

New York State Court of Claims
BLACKSHEAR v. STATE OF NEW YORK, # 2020-058-044, Claim No. 127312


Claim alleging wrongful confinement dismissed after trial for lack of subject matter jurisdiction; Claim requires review of the propriety of the Department of Corrections and Community Supervision's (DOCCS) determination to run Claimant's three prison disciplinary penalties consecutively as opposed to concurrently and to deny Claimant's grievance challenging same.

Case information

UID: 2020-058-044
Claimant short name: BLACKSHEAR
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127312
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney: Hon. Letitia James, New York State Attorney General
By: Ray A. Kyles, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 23, 2020
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Pro se Claimant Douglas Blackshear, Jr., seeks damages for wrongful confinement sustained while incarcerated at Cayuga Correctional Facility (CCF). Claimant alleges he was wrongfully held in the Special Housing Unit (SHU) for an additional 34 days beyond penalties imposed following guilty determinations in three separate misbehavior reports. Claimant asserts Defendant violated his rights "under the New York State Constitution, by failing to follow their own policies, rules and regulation"(1) thereby, subjecting him to "cruel and unusual punishment."(2)

The trial of this Claim was conducted virtually.(3) Claimant testified on his own behalf and called two witnesses, now-retired Disciplinary Hearing Officer Robert Guido and Elmira Correctional Facility Superintendent John Rich. Defendant did not call any witnesses. Claimant offered 12 exhibits and Defendant offered 5 exhibits, all of which were received into evidence by stipulation of the parties. At the conclusion of Claimant's case, Defendant moved to dismiss the Claim; Claimant opposed; and the Court reserved decision.

After considering all the testimony and evidence received at trial, reviewing the applicable law and arguments made by the parties, the Court grants Defendant's motion to dismiss made at the conclusion of Claimant's case and dismisses the Claim.


The facts of this claim are largely undisputed. The subject of this Claim are three separate misbehavior reports received by Claimant while incarcerated in CCF, which imposed three separate sanctions. A misbehavior report was filed on February 20, 2015 at 1:20 p.m. charging Claimant with a violation of "Contraband" (hereinafter, "first violation"). A tier II disciplinary hearing was conducted February 26, 2015. Claimant was found guilty of the charge and received a 21-day penalty in keeplock, among other administrative penalties. Six days of the penalty were served from the date of the incident, February 20, 2015, until the conclusion of the hearing, February 26, 2015, with an additional 15 days served from February 26, 2015 to March 13, 2015.(4)

Claimant received a second misbehavior report on February 20, 2015 at 5:10 p.m. charging him with three violations; to wit: "Interference With Employee," "Refusing Direct Order," and "Out of Place" (hereinafter, "second violation"). A tier III hearing was conducted on March 3, 2015 and concluded on March 4, 2015, finding Claimant guilty of the first two charges. Among other administrative penalties, a 60-day penalty was imposed in SHU to commence March 13, 2015 and end May 12, 2015.(5)

Claimant received a third misbehavior report on February 21, 2015 at 12:30 p.m. charging him with six violations; to wit: "Unauthorized Medication," "Contraband," "Other Inmate Crime Info.," "Refusing Direct Order," "Unpermissable ID", and "Unauthorized Legal Assistance" (hereinafter, "third violation"). A tier III hearing was conducted on March 2, 2015 and ended on March 9, 2015, finding Claimant guilty of all charges. Claimant received a penalty of 90 days in SHU, among other administrative sanctions. The 90-day penalty, described in a handwritten "Superintendent Hearing Disposition Rendered" document, was to be served from February 21, 2015 to May 22, 2015.(6) Claimant testified he successfully appealed the third violation, resulting in a penalty reduction from 90 days to 45 days.(7) Claimant's penalty was further reduced by 12 additional days upon the Director of SHU's discretionary review, leaving a total of 33 days to be served by Claimant in SHU as a result of his third violation.

Claimant testified he understood the confinement penalties imposed as a result of being found guilty of the first and second violations, namely, 21 days and 60 days respectively, were run consecutively. Claimant relied upon the "Start Date" and "Release Date" found on the "Superintendent Hearing Disposition Rendered" documents for each of the penalties imposed by the presiding hearing officers relative to those violations.(8) Claimant further testified that the 90-day sanction relative to the third violation, which was subsequently reduced to 33 days, was to run concurrent to the first and second violations. Claimant again relied upon the start and release dates found on the "Superintendent Hearing Disposition Rendered" document.(9) Claimant averred, however, that the third violation sanction was run consecutive to the penalties imposed on the first and second violations. Consequently, Claimant testified he was held an additional 34 days beyond the sanctions imposed, as he was released from SHU on June 5, 2015.(10) Claimant asserts he should have been released from SHU on May 11, 2015.

When Claimant was not released from SHU on May 11, 2015, he filed a grievance with the Inmate Grievance Committee. This grievance was denied. Claimant appealed the denial of his grievance, which was also denied.(11)

Now-retired Disciplinary Hearing Officer Robert Guido ("Guido") testified he worked for New York State Department of Corrections and Community Supervision (DOCCS) for 17 years and served approximately nine or 10 of those years as a disciplinary hearing officer. Guido stated he conducted at least 100 hearings during his tenure with DOCCS. Guido's testimony was undisputed in that he conducted the Claimant's second violation hearing, found Claimant guilty of all charges, and imposed a penalty of 60 days in SHU, in addition to other administrative penalties. Guido acknowledged he was aware of 7 NYCRR 254.7 (a) (2), which provides that a hearing officer may run a penalty concurrent to a penalty previously imposed; however, Guido testified the penalty he imposed was to run consecutive to the first violation. Guido also described the administrative process employed by DOCCS in conducting disciplinary hearings. In particular, Guido explained that once a penalty is imposed by a disciplinary hearing officer, the penalty is imported into a computer system which calculates the exact start and release date of inmates.

Guido further testified it was his practice to obtain an inmate's disciplinary record prior to conducting a hearing if such record was not included in the paperwork provided to him. Guido believed he had Claimant's disciplinary record reflecting the first violation, which permitted him to accurately account for the start and release dates of the penalties imposed on the second violation set forth on the "Superintendent Disposition Hearing Rendered" document he executed.(12)

Superintendent John Rich ("Rich") testified he has worked for DOCCS for 39 years, serving eight years as Deputy Superintendent of Security at CCF. Rich testified he is currently Superintendent of Elmira Correctional Facility and has served in that capacity for approximately one year. Rich further testified he conducted thousands of disciplinary hearings over the course of his employment with DOCCS.

Rich explained he conducted the disciplinary hearing relative to Claimant's third violation. At the conclusion of the hearing, Rich found Claimant guilty of all charges and imposed a penalty of 90-day SHU confinement. Rich stated he completed the "Superintendent Hearing Disposition Rendered" document wherein he indicated the 90-day penalty imposed would start on February 21, 2015, the date of the incident, and would end on May 22, 2015. Rich conceded the dates of the penalties he imposed would not have taken into account any prior sanction imposed as he may not have been aware of any prior sanction and/or may not have had Claimant's disciplinary record in which to refer.

Rich described that any penalty imposed by a disciplinary hearing officer is imported into a computer system which then accurately reports start and release dates after the conclusion of disciplinary hearings. Rich testified that at the conclusion of the third violation hearing, he imposed a 90-day sentence to run consecutive to any other penalty imposed. He explained that regardless of whether a hearing officer is aware of any other penalty imposed, DOCCS' computer system automatically adjusts start and release dates based upon the inmate's disciplinary history. When questioned as to whether there was a DOCCS' policy regarding the process of entering inmate disciplinary information into a computer system to accurately record and/or adjust start and release dates, Rich stated he was unaware of any policy. Rich testified he was and is aware of 7 NYCRR 254.7 (a) (2), which states all disciplinary sanctions are to run consecutive to any other sanction imposed unless a hearing officer specifically states the sanction is to run concurrently. Rich testified it was his intent to run the penalty for the third violation consecutive to Claimant's other disciplinary sanctions.


The Court of Claims is a court of limited jurisdiction and does not possess the jurisdiction to grant strictly equitable relief (see Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005]). The threshold issue in determining whether the Court of Claims has subject matter jurisdiction over a claim is "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim" (id., quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988], rearg denied 72 NY2d 1042 [1988]). "The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination--which the Court of Claims has no subject matter jurisdiction to entertain" (Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1143-1144 [3d Dept 2009] [internal quotation marks and citation omitted], lv denied 12 NY3d 712 [2009], lv denied 12 NY3d 712 [2009]; Feuer v State of New York, 101 AD3d 1550, 1551 [3d Dept 2012]). Indeed, "an administrative agency's determination may be reviewed only in the context of a CPLR article 78 proceeding commenced in Supreme Court, and not in an action brought in the Court of Claims" (Buonanotte, 60 AD3d at 1144; see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991]; Matter of Gross, 72 NY2d at 236). "If the award of a money judgment must be preceded by overturning and annulling a determination of an administrative agency then the primary relief sought is not money damages" (Ouziel v State of New York, 174 Misc 2d 900, 905 [Ct Cl 1997]).

Although Claimant characterizes the Claim as one seeking money damages, it is clear that resolution of this matter requires judicial review of an administrative agency's determination; namely, the propriety of DOCCS' determination to impose consecutive disciplinary sanctions and DOCCS' denial of Claimant's grievance and appeal challenging same. This Court lacks jurisdiction to review such determinations (see Green v State of New York, 90 AD3d 1577, 1578-1579 [4th Dept 2011] [holding Court of Claims lacks subject matter jurisdiction over Claim seeking money damages for "various improprieties imposed upon (the claimant) via disciplinary actions" because "adjudication of (the) claim requires review of the underlying administrative determination, over which the Court of Claims lacks subject matter jurisdiction"], lv denied in part & dismissed in part 18 NY3d 901 [2012]; Johns v State of New York, UID No. 2017-040-083 [Ct Cl, McCarthy, J., July 7, 2017] [dismissing claim seeking money damages stemming from the claimant's placement into Fishkill Correctional Facility's Residential Treatment Facility (Fishkill's RTF) on the ground that "the Court would have to review and overturn or annul DOCCS' determination to place (the) Claimant in Fishkill's RTF," which must be pursued in Supreme Court]).

It is undisputed Claimant was found guilty of violations after three separate disciplinary hearings were conducted. Based upon the credible testimony of Guido and Rich, as well as the exhibits received at trial, the Court finds all sanctions imposed ran consecutive to the other. Claimant submitted a grievance and an appeal of that grievance making the same claim he asserts here, that he was wrongfully confined an additional 34 days in SHU as a result of the sanctions being imposed consecutively rather than concurrently. Review of these administrative determinations must be brought in a CPLR Article 78 proceeding (see e.g. Matter of Hyatt v Annucci, 167 AD3d 1194 1195 [3d Dept 2018] [article 78 alleging "that certain of the challenged penalty periods requiring him to be placed in the SHU or keeplock should have run concurrently"]; Matter of Black v Annucci, 156 AD3d 1084, 1084 [3d Dept 2017] ["(p)etitioner commenced this CPLR article 78 proceeding challenging the manner in which the keeplock penalties were set to run, maintaining that they should run concurrently"]).(13)

Claimant also purports to assert a New York State constitutional tort as he alleges, he was subjected to cruel and inhumane punishment as a result of DOCCS failing to follow their own policies, rules and regulations. In Brown v State of New York (89 NY2d 172 [1996]), the Court of Appeals "recognized that, when certain requirements are met, a violation of the NY Constitution may give rise to a private cause of action" (Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; see Wagoner v State of New York, UID No. 2008-029-014 [Ct Cl, Mignano, J., Apr. 2, 2008]). However, the Court later clarified in Martinez v City of Schenectady (97 NY2d 78, 83 [2001]), that Brown establishes a "narrow remedy," applicable in cases where no other remedy is feasible to provide citizens with "an avenue of redress" when their private interests have been harmed by constitutional violations (see also Waxter, 33 AD3d at 1181). Thus, "where an adequate remedy could be provided, 'a constitutional tort claim . . . is [not] necessary to effectuate the purposes of the State constitutional protections . . . [invoked] nor appropriate to ensure full realization of [claimants'] rights'" (Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003], quoting Martinez, 97 NY2d at 83). Stated differently, "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 [3d Dept 2009]).

Here, recognition of the State constitutional cause of action is neither necessary nor appropriate to ensure the full realization of Claimant's rights. Claimant's alleged harm could be redressed by the common law cause of action for wrongful confinement asserted in this Claim (see Anselmo v State of New York, UID No. 2019-015-142 [Ct Cl, Collins, J., May 15, 2019]). Accordingly, to the extent the Claim asserts a state constitutional tort, it must be dismissed.

Upon consideration of the testimony of Claimant and the witnesses who testified, observing their demeanor while testifying, as well as examining the documentary evidence received at trial and reviewing the applicable law, the Court grants Defendant's motion to dismiss made at the conclusion of Claimant's case and dismisses the Claim.

Accordingly, Claim Number 127312 is dismissed. Any and all other evidentiary rulings or motions upon which the Court may have previously reserved or which were not previously determined, are hereby denied.


October 23, 2020

Albany, New York


Judge of the Court of Claims


Claim No. 127312 4.

2. Claim No. 127312 5.

3. The parties stipulated and consented to a virtual trial of this Claim utilizing the Microsoft Teams platform. The Court, Claimant, Defense Counsel and the two witnesses who testified in this matter each appeared from separate locations. Witnesses were sworn in virtually; and the Court was able to clearly hear and observe the witnesses during the course of their testimony.

4. See Claimant's Exhibits 1, 4; Defendant's Exhibit A.

5. See Claimant's Exhibits 2, 5; Defendant's Exhibit B.

6. See Claimant's Exhibit 6; Defendant's Exhibit C.

7. See Claimant's Exhibit 7; Defendant's Exhibit D.

8. See Claimant's Exhibits 4, 5; Defendant's Exhibits A, B.

9. See Claimant's Exhibit 6; Defendant's Exhibit C.

10. Claimant provided conflicting testimony as to his SHU release date. The Court finds Claimant was released from SHU on June 5, 2015.

11. See Claimant's Exhibits 8-10.

12. See Claimant's Exhibit 5; Defendant's Exhibit B.

13. Claimant submitted a case summary of Matter of Omaro v Annucci, Sup Ct, Wyoming County, June 25, 2014, Index No. 21,443-13, as a proposed Exhibit 13. This exhibit was marked for identification, but was not admitted into evidence. Nevertheless, the Court notes that Matter of Omaro, which involves an inmate challenging the manner in which his keeplock penalties were computed (consecutively as opposed to concurrently), is an article 78 proceeding.