New York State Court of Claims

New York State Court of Claims

McKINLEY v.THE STATE OF NEW YORK, #2000-019-021, Claim No. 96138, Motion No. M-62024


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):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Michael C. Rizzo, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 19, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate appearing
pro se, alleges that he was wrongfully confined to the Special Housing Unit (hereinafter "SHU") and keeplock at the Shawangunk Correctional Facility for 39 days from March 9, 1997 until April 17, 1997. This matter was tried on August 15, 2000 at the Sullivan Correctional Facility.

The State of New York (hereinafter "State") moved for an order of dismissal on the ground that the actions of State Correction Officers were quasi-judicial in nature for which the State has absolute immunity (Motion No. M-62024). Due to the last minute timing of the State's motion, the Court advised both parties in writing that oral argument on the motion would be held immediately prior to trial. This Decision will dispose of both the trial and the motion.

Claimant testified that on March 9, 1997,
he was charged by way of two misbehavior reports with creating a disturbance, harassment, refusing a direct order, and a movement regulation violation. Upon the filing of these misbehavior reports the Claimant was immediately placed in SHU. Pursuant to the rules and regulations of the facility, a Tier III hearing was begun on March 12, 1997 and concluded on March 18, 1997 on the above-referenced charges, whereupon Claimant was found guilty of harassment. As a result, Claimant was sentenced to keeplock for 51 days and to SHU for 9 days (time served), for a total sentence of 60 days confinement between SHU and keeplock.

Claimant appealed by way of discretionary review and the decision of the hearing officer was affirmed. On April 17, 1997, Claimant requested a second discretionary review of the Tier III disciplinary hearing at which time P.W. Annetts, Deputy Superintendent for Security, expunged the findings of the March 18, 1997 disciplinary hearing. The reason for expunging the findings was that the audio tape of the March 18, 1997 Tier III hearing was inaudible on side B. Consequently, there was no adequate record maintained for review by the facility. The Claimant was released from keeplock status and all other privileges restored as of that date. Claimant alleges that as a result of this 39 days of wrongful confinement, in addition to emotional distress, he suffered from loss of package privileges, loss of commissary privileges and loss of phone privileges.

As a general rule, correction officers are provided absolute immunity for the discretionary and quasi-judicial actions taken in furtherance of security and disciplinary measures, including bringing disciplinary charges and conducting disciplinary hearings, to insure officers are not inhibited in these crucial decisions due to fear of a damage claim. (
Arteaga v State of New York, 72 NY2d 212, 219; Ramirez v State of New York, 171 Misc 2d 677). This immunity is not waived solely because the disciplinary decision is later reversed. (Arteaga v State of New York, supra, 72 NY2d 212). However, this grant of absolute immunity will be waived if the State fails to act in accordance with an established set of due process safeguards set forth in department regulations which incorporate an inmate's right to have his hearing electronically recorded. (7 NYCRR 254.6 [b]; 7 NYCRR parts 251-254; Arteaga v State of New York, supra, 72 NY2d, at 221).

It is well settled that 7 NYCRR 254.6 (b) requires that "[t]he entire [disciplinary] hearing must be electronically recorded." It has been stated that "[t]he purpose of 7 NYCRR 254.6 (b) and a hearing record is to allow review by a higher authority (
Matter of Gonzalez v LeFevre, 105 AD2d 909, 911)." (Matter of Berrios v Kuhlmann, 143 AD2d 475, 477). The failure to have a tape of evidence available for judicial review has been deemed to violate an inmate's "[f]undamental due process rights and not merely a procedural right." (Matter of Scott v Coughlin, 161 Misc 2d 777, 779). Here, a memorandum from the Deputy Superintendent in charge of security (State's Ex. B), acknowledges that the hearing tape was defective inasmuch as side B was inaudible. While this indicates an attempt to record the hearing, the Court views a defective recording versus no recording as the functional equivalent of each other since the result is the same, namely there is no record for appeal or review. In sum, the State is not entitled to invoke the protection of immunity in connection with its conduct of this disciplinary hearing because it violated one of its own due process safeguards by failing to electronically record Claimant's hearing, warranting denial of the State's motion. (Gittens v State of New York, 132 Misc 2d 399, 406).

Consequently, Claimant is entitled to money damages for his 39 days for wrongful confinement and for the loss of privileges associated therewith to which the Claimant testified at trial. Thus, the Court finds $10.00 per day to be reasonable compensation for a total sum of $390.00.

All other motions on which the Court previously reserved or which were not previously determined are hereby denied.


September 19, 2000
Binghamton, New York

Judge of the Court of Claims