New York State Court of Claims

New York State Court of Claims

KILPATRICK v. THE STATE OF NEW YORK, #2001-031-505, Claim No. 99622


Claimant failed to demonstrate that hearing officer exceeded his authority or violated applicable rules, despite the fact that his disciplinary determination was later administratively reversed. Claim dismissed

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:
Attorney General of the State of New York
BY: WILLIAM LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 5, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Victor Kilpatrick ("Claimant") filed Claim No. 99622 on January 11, 1999, against the State of New York, alleging that he was illegally confined to keeplock between April 10 and September 21, 1998. I conducted a trial on September 19, 2001, at Wende Correctional Facility.

Claimant commenced his case by reading his Affidavit in Support of Claim which had been appended to his claim and filed with the Court. What follows is a paraphrasing of that document. Items in quotations are direct quotes from the Affidavit.

Defendant's agents confined Claimant on April 10, 1998, following a Tier III Superintendent's Hearing for violating "Inmate Standard of Behavior Rule # 113.12, ‘use of a controlled substance'." On April 24, 1998, Correction Lieutenant Walter conducted a hearing and found Claimant guilty of violating Rule #113.12. Claimant was sentenced to 180 days of cell confinement, term to commence April 10, 1998, and end on October 7, 1998.

Claimant then filed an appeal to the Commissioner of the Department of Correctional Services. He based his appeal on four grounds:
  1. "The ‘Request for Urinalysis' form (#2082) failed to specify the underlining (sic) reason why Claimant was ordered to submit a urine specimin (sic). This, in violation of Title 7 NYCRR part 1020.4 (c).";
  2. "The officer performing the test performed full scan, when he was only authorized to perform a single scan.";
  3. "The hearing officer, Lt. Walter, denied the Claimant the right to call a requested witness, and did not provide a written (or verbal) explanation why. This is in violation of DOCS Directive #4932 section 253.5."; and
  4. "The Claimant was charged with and found guilty of Inmate Standard of Behavior Rule #113.12 in April 1998, said rule was deleted from the Inmate Standard of Behavior rule book on February 1st, 1998."
The Commissioner's Office notified Claimant on June 19, 1998, that the hearing officer's decision was affirmed. Claimant then filed an Article 78 petition in New York State Supreme Court, Erie County, on August 9, 1998. The matter was returnable on September 24, 1998.

Then, on September 21, 1998, Claimant received a second notice from the Commissioner's Office "advising him that on the 21
st day of September 1998, the April 24th 1998 Tier III Superintendent's hearing determination had again been reviewed and reversed." Claimant was released that same day and the Article 78 petition was later dismissed as moot.[1]
Claimant alleges Defendant illegally confined him because Defendant's agents failed to follow proper procedure when they administered the urinalysis test. Claimant's Exhibit 4 entitled "Request for Urinalysis Test," is the NYS Department of Correctional Services form related to Claimant's test. Claimant testified that he was not properly notified of the reason for having to take the test because the form was not completely filled out by Defendant's agents.

At the trial, Lt. Walter disagreed with Claimant's assertion and explained that Claimant's Exhibit 4 did state the reason Claimant was ordered to submit to the test. Line 7 of the form states "(circle one: Suspicion Routine Random)" as the reasons the test is to be administered. Lt. Walter dismissed this particular challenge during the hearing because, even though the reason was not circled on Claimant's Exhibit 4, there was a handwritten note to the immediate right of the word "random" that states "prior," indicating to Lt. Walter that Claimant had a prior positive result during random testing.

Further, Lt. Walter understood that the circumstances leading to the request, as noted on Claimant's Exhibit 4, referenced "IDTS" or "Inmate Drug Testing System." He testified that this meant that Claimant was being tested according to the procedures generated by computer in Albany directing correction staff to perform a random test or to follow up with a particular inmate because of a prior positive result.[2]
Exhibit 4 provides sufficient notice to Claimant regarding the reasons for the urinalysis test.
Lt. Walters testified that he had conducted other hearings, prior to Claimant's hearing, involving the same or similar urinalysis tests and in which the inmates alleged false positive results as a defense. He stated that, as a result of these prior experiences, the company that manufactured the test was contacted and asked to produce documentation regarding what, if anything, could produce a false positive result. The Assistant Attorney General offered a series of correspondence, Defendant's Exhibits B, D, and G, from Syva Company and Dade Behring, the alleged manufacturers of the urinalysis tests. While they were not offered for the truth of the matter asserted, that is, that no over-the-counter medications could produce a false positive for the urinalysis test administered by the facility, they did go to Lt. Walter's state of mind and his reason for rejecting Claimant's defense at the hearing. I note that none of these exhibits refer to the specific test administered to Claimant, the Syva EMIT ETS Test. It was Lt. Walters' understanding that Dade Behring, the company that authored Defendant's Exhibit B, was somehow related to the Syva Company, the maker of the urinalysis tests and author of Exhibit D. On the same issue, the Assistant Attorney General offered Defendant's Exhibit D, a letter from the Syva Company to the Wende Correctional Facility, dated September 28, 1989, regarding the Syva EMIT ST Test. Defendant's Exhibit D was the basis for Lt. Walter's belief that the medication Naproxen would not cause a false positive result in the urinalysis test even though Exhibit D pertained to a testing system that was not used in 1998 nor was it used on the Claimant.[3]

Regarding Claimant's allegation that he was denied the right to call witnesses at the Superintendent's hearing, Claimant admitted at trial that Lt. Walter allowed him to call the requested witnesses. In fact, Dr. Punzal testified on Claimant's behalf regarding the fact that Claimant was prescribed the medications Ibuprofen and Naproxen.

Regarding Claimant's allegation that he was erroneously charged with violating a rule that had been revoked, Claimant offered Exhibits 3 and 4. Claimant's Exhibit 3 is a copy of the cover of the NYS Department of Correctional Services "Standards of Inmate Behavior, All Institutions." The cover page indicates it was revised in February 1998. Page 19 of that manual is also copied and indicates the omission of section 113.12 - the section Claimant was charged with in April 1998. Claimant testified that he did not actually receive a copy of the manual until some time after Lt. Walter completed the hearing and rendered his decision.

Lt. Walter testified that Rule 113.12 was in effect at the time of Claimant's hearing because, although the rules may have been revised in February 1998, the revised rules were not effective until the New York State Legislature adopted them in June 1998. Lt. Walter then went on to state that the facility's computer, which generates the documents for conducting the disciplinary hearings, would not have accepted the data or scheduled the hearing if that particular rule did not exist at that time.

Claimant's argument is premised in some part upon the fact that his Tier III disposition was reversed and expunged administratively just before his article 78 proceeding was to be heard. He believes that this implicitly demonstrates that Defendant knew all along that it had acted improperly and in violation of Claimant's rights. However, even if the Article 78 application had been heard, and Claimant been successful in that proceeding, he would still have to demonstrate that the disciplinary hearing was conducted in violation of the relevant rules before he could recover on this claim for monetary compensation. He has failed to make such a demonstration.

The actions of prison personnel involving inmate disciplinary matters are generally quasi-judicial and, unless they exceed the scope of their authority or violate applicable rules, are afforded absolute immunity (
Arteaga v State of New York, 72 NY2d 212; Davis v State of New York, 262 AD2d 887, lv denied 93 NY2d 819). The fact that the disposition from a disciplinary hearing is later reversed does not necessarily remove the matter from the blanket of immunity (Arteaga v State of New York, supra; Bonacorsa v State of New York, Ct Cl, May 31, 1994 [Claim No. 86522], Bell, J.). From the facts presented, it would appear that the correction officers took appropriate disciplinary measures and acted within the scope of their discretionary functions in conducting the hearing and in imposing penalties upon Claimant. There is no indication that Defendant violated any of its own rules and regulations in conducting the hearing, or otherwise acted outside the sphere of privileged actions. (Arteaga v State of New York, supra., Holloway v State of New York, 2001 WL 777553 (3d Dept. 2001); c.f.: Gittens v State of New York, 132 Misc.2d 399 (N.Y. Ct. Claims 1986)). Accordingly, their determinations are entitled to immunity.
For the reasons stated above, Defendant's motion to dismiss the claim is granted. The Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

December 5, 2001
Rochester, New York

Judge of the Court of Claims

[1]Claimant stated he wanted me to consider the fact that, once Mr. Selsky reversed the initial determination, Claimant then contacted Mr. Selsky requesting an explanation. Claimant stated he understood that the hearing tape was inaudible and that the hearing officer should have considered documents offered by Claimant at the hearing. Claimant states that if the tape was inaudible and the hearing officer was wrong when Mr. Selsky reversed himself on September 21, 1998, the tape was inaudible and the hearing officer was wrong when Mr. Selsky originally upheld the determination 60 days earlier. Claimant believes it was really the fact that his Article 78 petition was filed that caused Mr. Selsky to reverse himself. The fact that this happened does not impose liability upon the state for the reasons articulated later in this decision.
[2]At the trial, Claimant raised a new objection to the conduct of the hearing before Lt. Walter. Claimant believed that Lt. Walter's determination that Claimant was guilty of violating Rule # 113.12 was illegal because the medication prescribed by the facility's doctor at the time of the urinalysis test would produce a false positive result. Claimant offered Exhibit 2 to substantiate his assertion. I accepted the exhibit as evidence noting that it purported to be part of a manual related to drug testing. Inasmuch as Claimant could not authenticate the document, I have given it no weight in this decision.
[3] I also note that the addressee in Defendant's Exhibits B and G, Officer Tom Lamb, is the designated "drug officer" at Wende and is the person to whom hearing officers can rely upon for the technical information needed at these types of hearings. It was Officer Lamb that performed the urinalysis test. See Claimant's Exhibit 4.