New York State Court of Claims

New York State Court of Claims

MORENO v. THE STATE OF NEW YORK, #2001-007-551, Claim No. 100335


Claimant alleged he was unlawfully held on keeplock for 60 days at Clinton Correctional Facility. The court found that defendant violated its own regulations during the Tier III hearing. Claimant awarded $8 per day ($480 total damages).

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):

John L. Bell
Claimant's attorney:
H. Moreno, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (Michael C. Rizzo, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
April 5, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant alleges that he was unlawfully held on keeplock for 60 days while incarcerated at Clinton Correctional Facility (hereinafter Clinton).

Claimant testified that, on February 7, 1999, he was returning from the mess hall to his housing unit in upper F block and that he stopped to converse with another inmate. He indicated that tension was high at the facility because "something had happened earlier in the day."[1]
He recalled that inmates were being escorted to their cells. As he spoke to the other inmate, a correction officer "two or three cells" from claimant asked claimant if he had made a comment to him. Claimant denied making the comment, which ostensibly included a threat toward the officer. The officer nevertheless issued claimant a misbehavior report alleging he had made a threat and a Tier III hearing ensued.
Claimant testified at trial that at the Tier III hearing he requested that a certain inmate be produced as a witness. It was his contention that the inmate he requested as a witness was the individual who actually made a statement directed toward the correction officer on February 7. The hearing officer denied claimant's request to produce the witness and claimant was eventually found guilty of the charge. He received a penalty of, among other things, 60 days keeplock confinement. The hearing officer's determination was subsequently reversed on administrative appeal. The current claim ensued.

Disciplinary proceedings in correctional facilities that are conducted consistent with the relevant rules and regulations are afforded absolute immunity (
Arteaga v State of New York, 72 NY2d 212, 217-221; Davis v State of New York, 262 AD2d 887, lv denied 93 NY2d 819). The germane rule of the Department of Correctional Services (hereinafter DOCS) regarding inmate witnesses at Tier III hearings (7 NYCRR § 254.5) provides as follows:
"(a) The inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented.

"(b) Any witness shall be allowed to testify at the hearing in the presence of the inmate unless the hearing officer determines that so doing will jeopardize institutional safety or correctional goals. Where an inmate is not permitted to have a witness present, such witness may be interviewed out of the presence of the inmate and such interview tape recorded. The recording of the witness' statement is to be made available to the inmate at the hearing unless the hearing officer determines that so doing would jeopardize institutional safety or correctional goals.

"(c) An inmate may request a witness by either:

"(1) informing his assistant of [sic] the hearing officer before the hearing; or

"(2) informing the hearing officer during the hearing."

Hearing officers clearly are clothed with discretion regarding whether to call witnesses requested by inmates at Tier III hearings (see, e.g., Matter of Sims v Goord, 274 AD2d 701; Matter of Crandall v Coughlin, 219 AD2d 823, 824). Such discretion, however, must be exercised consistent with the parameters set forth in the controlling rule in order to be covered by Arteaga's blanket of immunity.
Here, claimant testified that he informed the hearing officer at the time of the hearing that he wanted a witness produced. Making the request for a witness at such time was consistent with the governing rule (
see, 7 NYCRR § 254.5[c][2]; cf., Matter of Hodge v Goord, AD2d [Feb. 1, 2001, Third Dept.]). According to claimant's unchallenged testimony, the hearing officer told claimant that the inmate witness he requested was no longer housed at Clinton. While unchallenged testimony does not necessarily have to be accepted as true by the trier of fact, the court found claimant a credible witness and accepts his version of events. Denying an inmate's request to produce a witness solely upon the basis that the witness is not housed at the facility where the hearing is conducted is not a proper denial under DOCS' rule.[2]
It merits emphasizing that the court is not second-guessing or reviewing a determination by the hearing officer in which one of the grounds in DOCS' rule for denying an inmate's request for a witness was relied upon by the hearing officer. If a hearing officer relies upon one of the grounds set forth in the rule, the officer's decision would be covered by absolute immunity from any claims for monetary compensation.[3]
Here, the fatal error was that none of the accepted grounds for denying an inmate's request for a witness, as set forth in DOCS' rule, were recited to claimant by the hearing officer. Instead, the officer merely indicated that the witness was no longer housed at Clinton.[4]
Claimant has successfully shown that defendant did not comply with a material and relevant rule while conducting his hearing. Such failure results in the
Arteaga blanket of immunity being lifted. Although establishing that defendant did not follow its own rule removes immunity from the case, it does not result in absolute liability of defendant (see, Bonacorsa v State of New York, Ct Cl, May 31, 1994 [Claim No. 86522], Bell, J.). Claimant still must prove the merits of his claim (id.).
Claimant testified that he made no comment or threat to the officer on February 7, 1999. As previously stated, the court found claimant's testimony to be truthful. The court concludes that claimant was placed on keeplock based upon allegations of conduct of which he was not guilty. He was thus wrongfully confined to keeplock for 60 days and he should be compensated.

Confinement in keeplock, where an inmate remains in his own cell 23 hours per day, is not as onerous as being moved out of his cell to a separate special housing unit for 23-hours per day confinement. After considering all the facts and circumstances presented at trial, the court awards claimant $8 per day for all damages sustained during the 60 days he was on keeplock for a total of $480.[5]

The Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

April 5, 2001
Plattsburgh, New York

Judge of the Court of Claims

[1] All quotes are from the court's trial notes unless otherwise indicated.
[2] Claimant contended that the witness had direct knowledge of the incident. Thus, the testimony of the witness would ostensibly have been "material" and "not redundant" (7 NYCRR § 254.5[a]). There was no showing that producing the witness would have "jeopardize[d] institutional safety or correctional goals" (id.). While the inmate witness may have refused to testify, thus obviating the need to produce him for the hearing (see, e.g., Matter of Jimenez v Goord, 264 AD2d 918), no effort was made to discern whether he would testify.
[3] Whether the use of the ground was proper could be challenged in an article 78 proceeding, where the available remedies include expungement.
[4] It may be permissible to elicit an inmate's testimony via various telephonic methods or even tape recording, thus obviating a need to actually return the inmate to Clinton for a hearing (see, 7 NYCRR § 254.5[b]).
[5] Although the claim failed to specify an amount requested for damages, the court amends the claim to conform to the proof at trial regarding damages.