New York State Court of Claims

New York State Court of Claims

ROSADO v. THE STATE OF NEW YORK, #2000-015-083, Claim No. 101736, Motion Nos. M-62013, M-61966, M-61894


State immune from liability for actions of DOCS employees in disciplinary proceedings. Failure to specify alleged negligence of State employees fatal to claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-62013, M-61966, M-61894
Cross-motion number(s):

Claimant's attorney:
Jesus Rosado, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 20, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the defendant (M-62013) for an order dismissing the claim for lack of subject matter jurisdiction and for failure to state a cause of action is granted. The motion of the defendant (M-61966) for an order pursuant to CPLR 3124 and 3126 compelling the claimant to serve a bill of particulars and to respond to discovery demands, as well as claimant's motion (M-61894) for an order pursuant to CPLR § 1102 (a) assigning him an attorney, are denied as moot. This is a claim by a pro se inmate alleging that he was in his cube on Housing Unit 56-A at approximately 11:00 p.m on May 9, 1999 at Mohawk Correctional Facility when a fight occurred involving seven other inmates. It is alleged that during the fight some of the combatants entered claimant's cube and, in the course of the altercation, one of the assailants struck claimant on the upper left side of his forehead. On May 11, 1999, claimant received an inmate misbehavior report charging him with violating Rule 118.23 of 7 NYCRR 270.2, failing to promptly report an injury to a facility employee. The inmate misbehavior report mistakenly stated that the charge would result in a superintendent's hearing rather than a disciplinary hearing. A violation of Rule 118.23 is either a tier 1 or tier 2 offense, and does not give rise to a tier 3 superintendent's hearing. The mistake was promptly discovered and a memorandum dated May 13, 1999 was sent to claimant advising as follows:
Upon review of your pending disciplinary hearing, it was discovered that the misbehavior which you were charged with (118.23-Unreported Illness) cannot be considered a tier 3 charge. Therefore, your hearing will be conducted within Departmental guidelines of a tier 2 hearing.
A hearing was conducted on May 17, 1999 resulting in a determination of guilt and a penalty of thirty days keeplock, thirty days loss of recreation, thirty days loss of package privileges, thirty days loss of commissary privileges and thirty days loss of the use of a telephone. Claimant pursued an administrative appeal and on June 30, 1999 the determination of guilt was reversed without explanation.

Claimant seeks to recover upon two theories of liability. The first is that the mistake concerning whether the misbehavior charge would result in a superintendent's hearing or a disciplinary hearing entitles him to compensatory damages. The second theory of recovery is that negligence on the part of employees of the Department of Correctional Services permitted an unidentified inmate to assault him. Defendant's position is that the Court lacks subject matter jurisdiction of those portions of the claim relating to the disciplinary proceeding as the activity of the Department of Correctional Services is entitled to absolute immunity. With respect to the assault, defendant argues that the claimant fails to state a cause of action in that he does not allege any negligent conduct on the part of correction officials.

In the case of Arteaga v The State of New York, 72 NY2d 212, 214, the Court of Appeals held that the State is immune from liability for the actions of employees of the Department of Correctional Services in commencing and conducting disciplinary proceedings stating, "[w]e hold that where, as here, the employees act under the authority of and in full compliance with the governing statutes and regulations . . . their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity". Thus, absent breach of a statute or regulation, an inmate may not recover for time spent in pre-hearing administrative segregation (Davis v State of New York, 262 AD2d 887), or time spent in a special housing unit prior to an administrative reversal of a determination of guilt (Minieri v State of New York, 204 AD2d 982). Claimant contends that a regulation was breached, in that a violation of Rule 118.23 could not be pursued at the tier 3 level, i.e., a superintendent's hearing. In the Court's view, the May 13, 1999 memorandum corrected that mistake prior to the disciplinary hearing and the penalties imposed by the hearing officer were in accord with a tier 2 disciplinary proceeding. The appellate courts recognize that procedural errors will occur in the course of prison disciplinary proceedings and permit such errors to be corrected at the administrative level if discovered prior to the issuance of a final administrative determination (Matter of Pabon v Coombe, 249 AD2d 629). Mistakes in a misbehavior report of a harmless nature will be overlooked if the inmate is accorded the process to which he is due (Matter of Nedrick v Stinson, 263 AD2d 651; Matter of Alston v Great Meadow Correctional Facility, 252 AD2d 697).

Here, there was a mistake contained in the inmate misbehavior report when it referred to a superintendent's hearing being held upon the disciplinary charge. That mistake was promptly discovered and corrected by the May 13, 1999 memorandum. The regulations governing the manner in which a tier 2 disciplinary hearing and a tier 3 superintendent's hearing are to be conducted are identical in almost every respect, except the punishment which may be imposed. In a tier 2 disciplinary proceeding the hearing officer may order confinement to a special housing unit or cell and the loss of one or more specified privileges, but only up to a period of thirty days. The same penalties are permitted at a superintendent's hearing but without the thirty day time limitation. Upon this record, claimant's pre-hearing confinement and the thirty days spent in the special housing unit were appropriate whether the misbehavior violation was prosecuted under tier 2 or tier 3. The procedural mistake was promptly corrected and is considered by the Court to be harmless. Under these circumstances, the claimant did not suffer an unjust confinement as the result of a breach of a regulation on the part of employees of the Department of Correctional Services and their activities are absolutely immune.

The allegations of the claim concerning claimant's second theory of recovery are as follows:
15. Claimant request this Court to grant compensation damage award against the State of New York the Department of Correctional Service at Mohawk Correctional Facility on May 9, 1999, about several inmate started to fit-fights and using any objects for dangerous instruments to inflict injuries hit the claimant's upper-Left-Side of his forehead which required medical treatment and stiches for the claimant head injury a sum of 25,000.00$ [sic], Negligence by the State of New York the Department of Correctional Services for the failure to secure for the safety and security to the claimant. [sic]
Defendant's contention is that while the claim sets forth the fact that the claimant was physically attacked by an unidentified inmate it does not set forth any alleged negligent conduct on the part of State employees.

Section 11(b) of the Court of Claims Act requires, inter alia, that a claim include a statement relating the nature of the claim. While the Courts have viewed this requirement with a certain flexibility (Ferrugia v State of New York, 237 AD2d 858), "[c]onclusory or general allegations of negligence that fail to [state] the manner in which the claimant was injured and how the State was negligent" have been held inadequate for purposes of the statute (Heisler v State of New York, 78 AD2d 767, 768).

Here, although the claim relates that the claimant was assaulted by another inmate, there are no allegations of negligence on the part of the State, let alone any statement, direct or to be implied, of the manner in which the State's negligence caused or contributed to the assault (see, Grumet v State of New York, 256 AD2d 441). The failure of the claim to specify the alleged negligence of the State is a fatal defect requiring dismissal (Patterson v State of New York, 54 AD2d 147, affd 45 NY2d 885; Bonaparte v State of New York, 175 AD2d 683; Jackson v State of New York, 85 AD2d 818; Grande v State of New York, 160 Misc 2d 383; Chung v State of New York, 122 Misc 2d 676; Karen v State of New York, 111 Misc 2d 396; DeHart v State of New York, 92 Misc 2d 631).

In view of the dismissal of the claim the motions addressed to disclosure and poor person relief have been rendered moot.

September 20, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion to dismiss the claim dated July 12, 2000;
  2. Affirmation of G. Lawrence Dillon dated July 12, 2000;
  3. Notice of motion to compel and/or preclude dated June 30, 2000;
  4. Affirmation of G. Lawrence Dillon dated June 30, 2000, with exhibits;
  5. Affidavit in support of a petition to proceed as a poor person of Jesus Rosado sworn to December 24, 1999;
  6. Petition for permission to proceed as a poor person of Jesus Rosado dated December 24, 1999;
  7. Claim filed on January 6, 2000