Aaron Callender, Claimant.
The State of New York, Defendant.
For Claimant: Aaron Callender, Pro Se
For Defendant: Eric T. Schneiderman, NYS Attorney General, Roberto Barbosa, Assistant Attorney General
DAVID A. WEINSTEIN, Judge of the Court of Claims
This decision follows the trial of the claim of Aaron Callender, an inmate appearing pro se, which was conducted via videoconference from Elmira Correctional Facility on June 8, 2012. The claim, which was filed on August 15, 2007, alleges that Department of Correctional Services  employees at Southport Correctional Facility ("Southport") failed to follow procedures in regard to timely deciding Callender's appeal from a tier III disciplinary hearing. The claim further alleges that once the hearing disposition was ultimately reversed, Callender was held for an additional 36 days before being moved to his previous housing level where he would be afforded more privileges. Claimant seeks money damages for the 36 days of confinement.
By way of background, Southport is composed almost entirely of prisoners placed in a Special Housing Unit ("SHU") (see generally Lee v Coughlin, 26 F.Supp.2d 615, 624-25 [SD NY 1998] [summarizing operation of Southport]). These prisoners remain in their cells 23 hours a day, and have highly limited programming opportunities, visitation rights, and recreational options. At the time of the incident (and currently), Southport used the Progressive Inmate Movement System ("PIMS"), consisting of three levels to classify SHU inmates based on various factors, including their acts of misbehavior and overall disciplinary records (Cl. Ex. 5, "Southport Correctional Facility Special Housing Unit - SHU Staff and Inmate Orientation Manual" ["Manual"]). 
Under this system, inmates are granted a range of privileges and subject to certain restraints depending on their PIMS level. PIMS Level I is the most restrictive, where prisoners are denied use of headphones and commissary privileges; are placed in waist chain restraints during visits and recreation, and may possess only limited items of property and clothing (Manual § 1), Level II grants more privileges, including cell study program, use of headphones, and monthly commissary privilege. In addition, restraints are removed during visits and recreation (Id.). Inmates on Level III have the most privileges, (including broader rights to clothing and property), having their handcuffs and waist chain removed in the visiting area and recreation yard, the ability to purchase candy from the commissary, and certain limited rights to shower and make phone calls (Id.). Claimant testified that once an inmate was placed on a more restrictive PIMS level, movement back to the prior level had to be earned through good behavior.
All prisoners who arrive at Southport are subject to restrictions like those on Level I for at least fourteen days upon their arrival at the prison (Id.). Moreover, before a prisoner can be transferred to a less restrictive level, there must first be a thirty-day adjustment period in which the inmate receives no disciplinary reports. In any case, while the prisoner's recent misbehavior and disciplinary record are "factors to consider" in placing the inmate, ultimately the decision on movement "is at the discretion of the Captain or his designee" (Id.).
Callender testified that on February 11, 2007, he was charged with committing an unhygienic act and for interference with an employee. He was immediately moved from PIMS Level III to Level I, which involved placement into a cell equipped with a plexiglass shield and a reduction in his privileges, as outlined above. Claimant asserted that he did not commit any of the acts with which he was charged.
A tier III disciplinary hearing was conducted on February 20, 2007, and on March 7, 2007, a disposition was rendered finding Callender guilty of the charges. He was sentenced to six months in a more restrictive PIMS Level than the one he had been in prior to the incident.  The hearing disposition record indicates that the sentence was to commence on February 21, 2007, with a release date of June 21, 2007 and two months of the sentence suspended. In his trial testimony, Callender recounted some of the loss of privileges and the restrictions that prisoners in general experience at the three PIMS levels, which comported with the descriptions in the Manual.
Callender maintained that his rights were violated when the hearing officer denied his request to call certain witnesses to the incident to testify on his behalf at the disciplinary hearing. On this basis, he appealed the disposition, but did not receive the commissioner's decision within the 60 days provided for in 7 NYCRR 254.8, which sets forth hearing appeal procedures.  After further inquiries, by memorandum from the Southport Superintendent dated June 28, 2007, claimant was informed that the hearing disposition had been reversed and references thereto had been expunged from claimant's institutional record. The memorandum stated: "Due to administrative oversight, appeal was not reviewed in a timely fashion" (Cl. Ex. 1). At the time Callender received this information, he was on PIMS Level II, and made requests to a number of correction officers that he be returned to Level III, but his requests were not granted. Claimant testified that he could have been moved, because space was available in Level III housing. 
On August 3, 2007, thirty-six days after Callender was informed of the reversal, he was moved to PIMS Level III.
On cross-examination, Callender acknowledged that there was nothing in the superintendent's reversal that indicated that his appeal had been heard or that it was reversed for any reason other than administrative oversight. He further acknowledged that there is a requirement under PIMS that an inmate undergo a 30 day "cool-off" period before moving up a level and if there were additional disciplinary infractions in the meantime, the 30-day period would start over.
Claimant's allegations sound in wrongful confinement (the label given an unjust conviction claim in the context of an already incarcerated claimant [ Donald v State of New York, (17 N.Y.3d 389, 394 (2011)]). To prove such a cause of action, claimant must show: "(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New ...