New York State Court of Claims

New York State Court of Claims

RAY v. THE STATE OF NEW YORK, #2002-032-031, , Motion No. M-66024


Motion for permission to late file is denied where, even if movant was able to prove that there was a regulatory violation in the procedure relating to a prison disciplinary proceeding, he would be unable to prove that the violation affected the ultimate outcome of the proceeding.

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:
Alson Ray, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Paul F. Cagino, Esq., Assistant Attorney GeneralOf Counsel
Third-party defendant's attorney:

Signature date:
March 31, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This motion presents the question of whether an inmate has a viable claim for money damages if prison officials violate one of their own rules or regulations in connection with a prison disciplinary proceeding brought against him. The Court holds that he may recover as long as he can establish (1) that the regulation which was violated is ministerial in nature and (2) that the outcome of the proceeding would have been different and in his favor if the violation had not occurred. This issue arises in the context of a motion for permission to file an untimely claim (Court of Claims Act §10[6]).

Movant's proposed claim alleges that in November 2001 employees of Upstate Correctional Facility failed to provide him with documents to which he was entitled and which were necessary for him to appeal a sentence that had been imposed on him as a result of a prison disciplinary proceeding.
In determining a motion for permission to file a late claim, the Court must consider, among
other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 1) whether the delay in filing the claim was excusable; 2) whether the State had notice of the essential facts constituting the claim; 3) whether the State had an opportunity to investigate the circumstances underlying the claim; 4) whether the claim appears to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and 6) whether the claimant has another available remedy. The Court in the exercise of its discretion balances these factors.

It is well-accepted that the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).
On the other hand, permitting a meritless or defective claim to be filed, even if the other factors in Court of Claims Act § 10 (6) support granting the motion, would be meaningless and futile (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). Counsel for defendant opposes the instant motion on this ground only, asserting that the proposed claim is meritless because it challenges the actions of employees of the Department of Correctional Services (DOCS) in commencing and conducting a formal disciplinary proceeding. Such actions, defendant asserts, are entitled to absolute immunity pursuant to the Court of Appeals' ruling in Arteaga v State of New York (72 NY2d 212). Movant, however, characterizes his proposed claim as arising from DOCS' violation of one of its own regulations, 7 NYCRR Chapter IV, Section 200.5(c)(iv), when documents to which movant was entitled were withheld from him (Ray affidavit, ¶4).
On November 10, 2001, movant was found to be in possession of a balloon containing 3.25 grams of tobacco following a visit from his wife, Regina Rene Turner. Ms. Turner was interviewed by facility staff on that date and admitted that she had brought four balloons with her to smuggle to her husband. Two of the balloons contained tobacco and two contained marijuana. By a letter dated November 21, 2001, Ms. Turner's right to visit claimant was revoked for a period of twelve months. Movant was also charged with and found guilty of violating several inmate rules. He was sentenced to eighteen months in the Special Housing Unit and a loss of visitation privileges for one year. Ms. Turner did not appeal the revocation as it affected her, but movant did appeal his sentence. The sentence was affirmed in a Memorandum Decision issued January 18, 2002, by Anthony J. Annucci, Deputy Commissioner and Counsel to the Department of Correctional Services ("DOCS") (Cagino affirmation, Exhibit B).
Section 200.5 of the Rules and Regulations for the DOCS provides that when a visitor's privileges are revoked for six months or more, as a result of conduct that "represents a serious threat to the safety, security, and good order of the facility," the visitor shall be notified in writing and the notice shall contain: a) the reason for the suspension or revocation, b) the duration of such suspension or revocation; and c) "copies of all charges and reports of misconduct relating to the charges." Subsection (c)(iv) requires that "[a] copy of the notice and related documents shall be sent to the inmate."[1] Movant alleges that because he did not receive any of these "related documents," he was unable to adequately present his appeal. He further alleges that the non-receipt of the documents deprived him of the opportunity to visit with his wife which caused complications in his marriage and resulted in serious mental and emotional disturbances (proposed claim, ¶¶24, 25). In this fashion, he asserts that if he had been able to make use of the documents, the disciplinary sentence would have been reversed on appeal.
In his proposed claim, movant identifies the related documents as those "that were reviewed and considered by Mr. Annucci" (proposed claim, ¶13). The Memorandum Decision issued by Deputy Commissioner Annucci lists the following as the documents considered in deciding the appeal:
1. Memorandum from Correction Officer Howard to DSS LeClair, dated November 10, 2001;
2. Statement by visitor Turner dated November 10, 2001;
3. Misbehavior Report, dated February 23, 2001 and related records;
4. Misbehavior Report, written by Correction Officer Garrow, dated November 10, 2001;
5. Notice of Suspension, dated November 21, 2001 from Supt. Ricks;
6. Letter of Appeal, dated November 19, 2001, November 21, 2001, November 22, 2001, November 29, 2001.

It is safe to assume that several of these documents were already in movant's possession. Movant himself wrote the letters referred to in No. 6; he did receive a copy of the November 21, 2001 notice (No. 5); and since the misbehavior reports referenced in Nos. 3 and 4 relate to charges brought against him, they undoubtedly were provided to him at the time they were filed. It appears, therefore, that the "related documents" that were not provided to movant must be the memorandum from Officer Howard and Ms. Turner's statement, both dated November 10, 2001 (Nos. 1 and 2). Those two documents are not before the Court. From the notice of suspension and the decision on appeal, one gathers that these papers most likely contained accounts of the interview of Ms. Turner and her statement that she had brought four balloons to the facility, intending to smuggle them to movant. There is no way to know, on the submissions now before the Court, if they contained any other information.
The actions of correctional facility employees with respect to inmate discipline matters are quasi-judicial in nature and, "unless the employees exceed the scope of their authority or violate the governing statutes and regulations, the State has absolute immunity for those actions" ( Holloway v State of New York, 285 AD2d 765, 765-766 [3d Dept 2000], citing to Arteaga v State of New York, 72 NY2d 212, 214, supra). Where, however, disciplinary proceedings are conducted in violation of the governing statutes and regulations, the State is not entitled to such immunity.
In Holloway and in a subsequent Court of Claims decision, Craft v State of New York (189 Misc 2d 661 [Ct Cl 2001]), the issue was whether prison officials were entitled to absolute immunity in connection with disciplinary proceedings in which convictions were based on evidence obtained in violation of relevant regulations. In Holloway, the regulation that prison officials were accused of violating was one that permitted some degree of discretion and, consequently, it was held that their actions were absolutely immune. In Craft, however, the regulation that was violated was ministerial (i.e., gave the officer no discretion), with the result that the officer's actions were not entitled to absolute immunity.
In the situation presented here, movant alleges that a regulation governing the course of the disciplinary proceeding itself was violated. In the Court's view, the same question must be asked: was the duty imposed by that regulation ministerial or discretionary? A rule that requires that notice of revocation shall include "copies of all charges and reports of misconduct relating to the charges" and that a copy of the notice "and related documents" shall be sent to the inmate does not allow for the exercise of independent judgment in determining what action must be taken. Consequently, the officials who failed to provide the necessary documents to movant violated a ministerial duty.
There is little authority as to what effect ministerial error in the conduct of the hearing has on the immunity otherwise enjoyed in connection with prison disciplinary proceedings. In Varela v State of New York (283 AD2d 841 [2001]), the Third Department rejected a claim of this nature, but the ground for doing so was that there had been no regulatory violation. In Henderson v Coughlin (163 Misc 2d 20 [Ct Cl 1994]), where it was conceded that the disciplinary hearing was held beyond the time period required by DOCS' own regulations, former Judge Gerard M. Weisberg held that no liability could result because, among other things, claimant failed to establish that the result of the proceeding would have been different if the hearing had been held in a timely fashion. In other words, unless the regulatory violation was ministerial and changed the outcome of the disciplinary proceeding, no compensable damage has been caused and the State will not be liable. This Court adopts the holding of Henderson. In order to recover in the action that he wishes to commence, therefore, movant must ultimately prove that he would have been successful on the appeal if he had had access to the missing papers.
In order to prove that the proposed claim has sufficient appearance of merit to succeed on a motion for permission to late file, a movant must establish that the proposed claim is not "patently groundless, frivolous, or legally defective" and that "there is reasonable cause to believe that a valid cause of action exists" (Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). For purposes of the motion, movant's factual allegations must be accepted as true unless they are denied or contradicted in defendant's opposing affidavits (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; (Sessa v State of New York, 88 Misc 2d 454 [Ct Cl 1976], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]).
Movant's proposed claim alleges he was denied access to documents that were relevant to his appeal and to which he had an absolute right under DOCS' own regulations. He also alleges that the lack of these documents caused him to lose his visitation rights with his wife, i.e., that their lack caused his appeal to be unsuccessful. While it may be difficult for movant to prove this causal connection by a preponderance of the credible evidence, neither movant nor the Court can be certain what is in those documents. Thus, we cannot say that his proposed claim is "patently groundless, frivolous, or legally defective."
Defendant does not oppose the motion on any ground other than the asserted lack of merit, and the Court finds that, with the possible exception of an excusable reason for delay, the other factors weigh in favor of granting claimant's motion for permission to file a late claim. Movant is therefore directed to file and serve a claim identical to the proposed claim submitted in support of this motion and to do so in conformity with the requirements of Court of Claims Act §§ 10 and 11 within sixty (60) days after this order is filed.

March 31, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim

1. Notice of Motion and Supporting Affidavit of Alson Ray, pro se, with annexed Exhibits

2. Affirmation in Opposition of Paul F. Cagino, Esq., AAG, with annexed Exhibits

Filed papers: None

[1] Movant also cites to Directive 4403, which was not provided to the Court but which appears to contain identical provisions.