New York State Court of Claims

New York State Court of Claims

KILPATRICK v. THE STATE OF NEW YORK, #2002-031-508, Claim No. 100462


Claimant failed to demonstrate his confinement following a Tier III disciplinary hearing was illegal. 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:
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Victor Kilpatrick ("Claimant") filed Claim No. 100462 on May 28, 1999, against the State of New York claiming wrongful imprisonment. In the claim, Claimant alleges that Defendant's agents confined him on March 1, 1999, pending a Tier III Superintendent's Hearing for failure to follow urinalysis testing protocols and failure to obey a direct order. The claim states that Claimant was found guilty and sentenced to, among other punishments, confinement in his cell for 365 days. Claimant alleges that he pursued a successful appeal and was released after 58 days of confinement. I conducted a trial on May 9, 2002, at Wende Correctional Facility.

On direct examination, Claimant testified that the hearing officer, Ms. Ann Kurek[1]
, conducted a hearing on March 12, 1999, finding him guilty of the charges and ordered him confined to his cell from March 1, 1999 through February 29, 2000.
Claimant then filed an appeal with Donald Selsky, the Director of Inmate Discipline for the Department of Correctional Services, on March 15, 1999. He based his appeal on four grounds, the most critical ground being the denial of a witness (Claimant's Exhibit 2).

The Director's Office notified Claimant that his hearing had been reviewed and reversed on April 27, 1999. The facility was directed to commence a rehearing within seven days and complete it within 14 days of receipt of the notice (Claimant's Exhibit 3). The facility elected not to commence a rehearing and, as a result, Claimant was released from keeplock confinement on April 27, 1999.[2]
Mr. Selsky provided additional information to Claimant by letter dated May 13, 1999, stating that the hearing was reversed because Claimant had been denied a relevant witness and that all records related to that hearing had been expunged (Claimant's Exhibits 4, 5).
Claimant states he was wrongfully confined because the hearing was invalid, as evidenced by Mr. Selsky's reversal; that Ms. Kurek intentionally and arbitrarily denied him the witness. Claimant went into great detail on the record regarding his understanding of the directives relating to urinalysis tests and what someone could or could not drink.

At the close of Claimant's case, the Assistant Attorney General moved to dismiss on the ground that Claimant had failed to prove a prima facie case, stating that the evidence proves that Claimant was provided the process due and that the appeal and Mr. Selsky's subsequent reversal was a part of this very process. Defendant argued that, because Claimant was retained during the pendency of the procedurally proper hearing and appeal, the retention was privileged.

The Hearing Record Sheet shows that Claimant requested a total of five witnesses. Two testified, two were waived by Claimant, and one was denied by Ms. Kurek. The sheet itself directs that the hearing officer fill out a form 2176 explaining the reason for denying a witness (Defendant's Exhibit E). Ms. Kurek did execute a Form 2176 on March 12, 1999, explaining that, because the proposed witness was not present during the incident, "she would have no first hand knowledge of what happened" (Claimant's Exhibit 5).

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.).
I find that the hearing officer relied upon the Department of Correctional Services' rule regarding witnesses: that only witnesses with material testimony and that did not jeopardize institutional safety or correctional goals need be called (7 NYCRR 254.5[a]). This is an important fact. As Judge Bell stated, "[I]f 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" (
Moreno v State of New York, Ct Cl, April 5, 2001, Bell, J., UID #2001-007-551).
It was reasonable, albeit later determined to be error, for the hearing officer to deny the Claimant's requested witness as it appeared that the witness did not have direct knowledge of the incident at issue. Inasmuch as Ms. Kurek exercised her discretion within the parameters of the applicable rule governing witnesses at Tier III hearings, her action is blanketed by immunity (
Moreno v State of New York, supra; Bunting v State of New York, Ct Cl, November 13, 2001, Bell, J., UID #2001-007-579).
It was Claimant's burden in this matter to demonstrate that he was denied due process at the hearing; 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. From the facts presented, it would appear that Ms. Kurek took appropriate measures and acted within the scope of her 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, 285 AD2d 765; cf. Gittens v State of New York, 132 Misc 2d 399 [N.Y. Ct Cl 1986]). Accordingly, her determination is 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.

September 30, 2002
Rochester, New York

Judge of the Court of Claims

[1]Kurek was the witness's name at the time of the hearing. She now goes by her married name, Ann Webber.
[2]There have been inconsistent assertions from Claimant regarding the dates of the reversal of the disciplinary hearing and his release from keeplock confinement. In his claim, in his previous affidavits to the court, and in his testimony, Claimant states that the hearing was reversed on both April 27, 1999 and May 27, 1999. Similarly, he has indicated that his release from keeplock confinement occurred on both April 27, 1999 and May 27, 1999. Claimant's Exhibits 3 and 4 clearly indicate that the hearing was reversed on April 27, 1999. Because Claimant implied that he was released at or about the time of the reversal, and because his claim is for 58 days of illegal confinement, beginning on March 1, 1999, I am assuming for purposes of this decision, that he was released from keeplock confinement on or about April 27, 1999.