Opinion
# 2017-038-108 Claim No. 119864
08-22-2017
AL-FATAH STEWART v. THE STATE OF NEW YORK
AL-FATAH STEWART, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Elizabeth A. Gavin, Assistant Attorney General
Synopsis
Claim dismissed after trial. Claimant testified that he was denied recreation while in Involuntary Protective Custody. CO testified that he refused recreation. Credibility issue determined in defendant's favor, and claim dismissed for failure of proof by a preponderance of the evidence.
Case information
| UID: | 2017-038-108 |
| Claimant(s): | AL-FATAH STEWART |
| Claimant short name: | STEWART |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119864 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | AL-FATAH STEWART, 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: | August 22, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that correction officers (COs) at Green Haven Correctional Facility (GHCF) negligently denied him recreation privileges from March 1 through April 1, 2011. The trial of this claim was conducted by videoconference on July 20, 2017, with the parties appearing at GHCF in Stormville, New York and the Court sitting in Saratoga Springs, New York. Claimant presented his own testimony and three exhibits that were received into evidence; defendant presented the testimony of GHCF Lieutenant Shawn Murphy and offered no exhibits. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and the documentary evidence received at trial and the applicable law, the Court concludes that defendant is not liable to claimant. FACTS
A pre-trial motion to dismiss the claim for failure to state a claim (M-90689) was withdrawn by defendant at the close of trial. --------
Claimant testified that while he was confined to A-Block of the Involuntary Protective Custody (IPC) unit at GHCF from March 1 through April 1, 2011 he had requested and was denied his one hour of recreation time by the COs assigned to the unit. Claimant testified that the COs were under the erroneous impression that he had been sentenced to keeplock with a loss of recreation privileges and that the entire IPC unit was denied recreation during that time period.
Lt. Murphy testified that inmates in the GHCF IPC unit are ordered to report for recreation unless they are confined. Lt. Murphy testified that all GHCF inmates are afforded the opportunity for recreation time, but they are not mandated to engage in recreation and can refuse to report. Lt. Murphy testified that an inmate who was under investigation could be denied recreation, but only for 72 hours, or if a deprivation order had been issued. Lt. Murphy testified that GHCF inmates who are in general population receive between two to three hours of recreation time per day, whereas inmates who are confined to keeplock or are otherwise confined receive one hour of recreation time, and inmates who are in the IPC unit also receive one hour of recreation time. Department of Corrections and Community Supervision (DOCCS) Directive 4009 provides in pertinent part that inmates shall be permitted to exercise at least one hour per day, except for newly-arrived inmates (until it has been determined that they have no enemies at the facility) and inmates who have lost their recreation privileges (who are not otherwise keeplocked or confined to their cell) (see Claimant's Exhibit 3 [DOCCS Directive 4009, VII (B)-(D)]).
Twenty logbook entries from the GHCF IPC unit on listed dates between March 1 and April 1, 2011 indicate that claimant had refused recreation on all but three of those dates, and that he attended recreation twice, with one entry noting "N.A."(see Exhibit 1, pp. 5-9 ["Rec" column]). Lt. Murphy testified that there was no policy to deny inmates in keeplock recreation time, and if there were such a policy there would be no reason to note the denial of recreation as a refusal. Claimant testified that any entries indicating that he had refused recreation time were falsified.
DISCUSSION
Resolution of this claim rests entirely upon the comparative credibility of claimant's proffered evidence that he was denied recreation time in violation of DOCCS policies and procedures for a period of one month, and the testimony of Lt. Murphy along with the logbook entries.
The logbook entries in defendant's exhibit 1 clearly indicate that claimant had refused recreation time in all but two entries, and Lt. Murphy credibly testified that to the extent that the COs mistakenly believed that claimant was not allowed to engage in recreation time, such entries would not have reflected that he "refused" recreation time, but more likely would have contained a notation indicating that claimant was not eligible for or was denied recreation time. After viewing claimant's testimony and observing his demeanor as he testified, the Court was not persuaded to a preponderance of the credible evidence that claimant was not offered and was denied recreation time for one full month, or that the entries that reflected his refusals were falsified.
CONCLUSION
Claimant did not prove by a preponderance of the credible evidence that he was not offered and was denied recreation time. Accordingly, defendant is not liable to claimant, and claim number 119864 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk is directed to enter judgment accordingly.
August 22, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims