New York State Court of Claims

New York State Court of Claims

MALIK v. THE STATE OF NEW YORK, #2003-031-005, Claim No. 106535, Motion Nos. M-65899, CM-66005


Claimant's disciplinary hearing was conducted in accordance with the rules and regulations governing such proceedings. Claimant's confinement following such hearing was, therefore, not improper. Claimant's motion for summary judgment denied. Defendant's motion for summary judgment granted.

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: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 18, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motions by Claimant and Defendant for summary judgment:
1. Notice of Motion (M-65899), filed October 9, 2002, and Claimant's attached, undated affirmation (sic);
2. Defendant's Notice of Cross-Motion (CM-66005), filed November 4, 2002;
  1. Affidavit of Richard B. Friedfertig, Esq., sworn to November 1, 2002, with attached exhibits;
4. Claimant's correspondence, dated November 4, 2002. Claimant and Defendant have both moved for summary judgment. Defendant also seeks, in the alternative, a preclusion order against Claimant, relating to Claimant's alleged continued refusal to properly respond to Defendant's discovery demands.

In his underlying claim filed on August 21, 2002, Claimant Abdel-Jabbor Malik alleges that on April 12, 2002, while an inmate at Wende Correctional Facility ("Wende"), Correction Officer G. Henderson gave Claimant an Inmate Misbehavior Report which charged him with violations of rules 107.11 (harassment) and 102.10 (threats). Claimant alleges that these charges were unfounded and that he was improperly confined to keeplock for 30 days following an April 16, 2002 disciplinary hearing.

At the April 16, 2002 Tier II hearing, Claimant alleges that he attempted to call as a witness the inmate against whom he was accused of making threats. Both parties agree that this witness was denied on the basis that Claimant had "admitting (sic) guilt" to the charge and that the witness' testimony, therefore, would have been redundant. Claimant asserts, however, that he did not admit his guilt and that the hearing officer's failure to call the witness was in contravention of his constitutional right to due process. Claimant, who was found guilty at the hearing, concedes that he was advised in writing of the reason that his requested witness was denied, but maintains that this reason was manufactured as he did not, in fact, admit that he was guilty. Claimant seeks summary judgment, asserting that there is no question of fact as to whether the witness he desired to call was material, and therefore the refusal to call this witness was, as a matter of law, a denial of his due process rights.

With regard to its motion for summary judgment, Defendant asserts that the Court of Claims does not have jurisdiction over matters such as this and that the appropriate venue for Claimant to address his grievances is in an Article 78 proceeding in Supreme Court. Indeed, Defendant also asserts that Claimant has unsuccessfully attempted to do just that. Defendant maintains that the Hon. Barbara Howe, Erie County Supreme Court Justice, denied Claimant's Article 78 application relating to the same subject matter. Defendant asserts that this requires dismissal of the claim based upon the doctrine of res judicata. Unfortunately, res judicata is an affirmative defense which was not asserted in Defendant's answer and, for that reason, summary judgment may not be granted on that premise.

This court does have jurisdiction over wrongful confinement actions in which due process rights of an inmate are violated during a disciplinary hearing (see Craft v State of New York, 189 Misc 2d 661). At first blush, it does appear that perhaps Claimant's concerns are legitimate, as he asserts that he pled not guilty to the charge of threatening inmate Grant and that inmate Grant, whom he sought to call as a witness in the proceeding, was not permitted to testify. It would indeed appear that his testimony was material and that the refusal to call him was improper.

However, a closer look at the transcript of the hearing indicates where the Claimant is in error and why Defendant's motion for summary judgment should be granted. The certified hearing transcript, which is attached to Defendant's moving papers as exhibit E, illuminates the basis for the hearing officer's determination. Although Claimant disputed at the hearing that he made the comments to inmate Grant attributed to him by Officer Henderson, he did not deny making statements directly to Officer Henderson regarding Henderson thinking he was "the big man" and that Claimant could "start a protest" in the facility any time he wanted (Exhibit E, hearing transcript p. 4 - 5). Based upon this, the hearing officer reasonably believed that Claimant had made threats in violation of rule 102.10, and that inmate Grant's testimony would be redundant. Claimant did in fact admit that he made these threats.

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)). It was reasonable, even if Claimant could later demonstrate that it was error, for the hearing officer to deny the Claimant's requested witness, as it appeared that Claimant had already admitted making statements upon which it could reasonably be determined that he made threats.

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). Inasmuch as the hearing officer exercised his discretion within the parameters of the applicable rule governing witnesses at Tier II hearings, his actions are blanketed by immunity (Moreno v State of New York, Ct Cl, April 5, 2001, [Claim No. 100335], Bell, J., MacLaw #2001-007-551).[1] Moreover, to the extent that Claimant's argument that the basis for the Inmate Misbehavior Report and the resulting hearing was in and of itself defective has merit, his remedy was with the Supreme Court in an Article 78 proceeding. Id. 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, 72 NY2d 212; Holloway v State of New York, 2001 WL 777553 [3d Dept. 2001]; cf. Gittens v State of New York, 132 Misc 2d 399 (Ct Cl 1986). Accordingly, their determinations are entitled to immunity.

Based upon the foregoing it is:

ORDERED, that Defendant's motion for summary judgment is granted and the claim is dismissed. Claimant's motion and the other aspects of Defendant's motion relating to discovery are denied as moot. The Clerk is directed to close the file.

February 18, 2003
Rochester, New York

Judge of the Court of Claims

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