Claimant brings a motion for an order dismissing defendant's defense pursuant
3211(b). Defendant has brought a cross-motion to dismiss the claim.
The Court will address defendant's cross-motion first, because the resolution
of this motion will dictate whether a determination of claimant's motion is
necessary. Defendant argues that the actions about which claimant takes issue
in his claim, do not subject the State to liability, because discretionary acts
of the State are protected by governmental immunity. Defendant argues that the
underlying basis for claimant's claim challenges the hearing examiner's reliance
upon a urinalysis test result to support a finding that claimant had used a
controlled substance, despite the fact that there was no proper chain of custody
for the urine specimen claimant provided. What the hearing examiner relied upon
to reach her guilty finding, according to defendant, cannot be the basis for a
cause of action against the State, because the hearing is a quasi-judicial
proceeding which blankets the actions of the Department of Correctional Services
personnel with absolute immunity in accordance with Arteaga v State of New
York, 72 NY2d 212; and therefore, the claim fails to state a cause of action
for which relief can be granted.
Claimant filed a claim with the Clerk of this Court on September 29, 2003. In
that claim, claimant complains about two separate incidents of wrongdoing.
First, claimant alleges a violation of his rights under the Sixth Amendment of
the United States Constitution, CPLR 4503, and 9 NYCRR § 7031.2 (b) and
(c), for defendant's conduct in monitoring claimant's telephone conversation
with his attorney from the public defender's office on April 18, 2003. He
seeks only punitive damages for these alleged violations. Secondly, claimant
takes exception to the State's use of the information obtained during that
telephone call to direct claimant to give a urine sample for a urinalysis test
on April 21, 2003. He complains that his due process rights were violated when
the results from that sample, which did not have a complete chain of custody,
were used to find claimant guilty of the charges and impose a punishment.
Claimant seeks damages for his wrongful confinement, and the privileges he lost,
specifically the loss of his placement in a cooking program (the "Food Service
Quickchill Program"), his employment as a barber, and his lack of telephone
privileges, which prevented him from speaking with his sister before her death.
Claimant did appeal the findings from the disciplinary hearing, which were
ultimately reversed and his record expunged. He was released from the SHU after
In deciding this motion, the Court has accepted the factual allegations
claimant asserts as true, and accorded claimant the benefit of every favorable
inference (Rochdale Village Inc. v Zimmerman, 2 AD3d 827). Despite this
favorable inference, claimant cannot succeed upon any reasonable view of the
Claimant's claim, based upon a violation of his Sixth Amendment rights, as a
result of defendant monitoring his telephone conversation with his attorney,
must be dismissed. This Court does not have jurisdiction over federal
constitutional tort claims (see, Zagarella v State of New York, 149 AD2d
503; Ferrick v State of New York, 198 AD2d 822). Moreover, the Sixth
Amendment sets forth the accused's rights "[i]n all criminal prosecutions." A
disciplinary proceeding within the correctional facility is not a criminal
prosecution. Even aside from the foregoing, the State's actions in monitoring
claimant's telephone calls are authorized by regulation, and claimant had no
reasonable expectation of privacy or attorney-client privilege, pursuant to CPLR
4503, in that notice is provided to all inmates that all telephone conversations
are subject to electronic monitoring (Claim, Exhibit A, 8/5/03 Superintendent's
response to Claimant's grievance and 9/17/03 Central Office Review Committee
response; 7 NYCRR
§ 723.3; Doe v Poe, 244 AD2d 450, affd 92 NY2d 864). The
section of the New York State Code of Rules and Regulations claimant cites as
being violated (9 NYCRR § 7031.2) entitled "Access to legal counsel"
applies to a local correctional facility, which means any county penitentiary,
county jail, city jail, court detentional pen, hospital prison ward, or town,
village or county lockup (9 NYCRR § 7000.1). Cape Vincent is a State
Correctional Facility. At State correctional facilities, all telephone calls
are subject to being monitored (7 NYCRR § 723.3). Finally, punitive
damages cannot be assessed against the State (see, Sharapata v Town of Islip,
56 NY2d 332, 338-339; Harvey v State of New York, 281 AD2d 846,
Claimant's assertion that he is entitled to damages as a result of the hearing
examiner relying on evidence at the disciplinary hearing, which did not have a
proper chain of custody, does not set forth a cognizable cause of action before
this Court. There is no allegation that the correctional services personnel,
who served the misbehavior report and conducted the hearing, acted outside their
authority or failed to comply with the procedures set forth in the New York
State Code of Rules and Regulations (7 NYCRR § 251-3.1 - § 254.9).
Claimant's complaint is that the hearing officer based her findings upon
evidence which was not reliable, because there was no proper chain of custody.
However, this goes to the heart of the immunity described in Arteaga v State
of New York, 72 NY2d 212. It is exactly this type of discretionary
determination made by correctional services personnel that is cloaked in
immunity; what the hearing examiner relied upon in reaching her determination,
that claimant had violated the rule as charged in the misbehavior report, is not
subject to review by this Court, nor can it form the basis for a claim against
the State. As the Court of Appeals stated in Arteaga, "the actions of
Correction Department employees in preparing and filing misbehavior reports,
confining inmates, and making dispositions following Superintendent's hearings
entail discretionary decisions in furtherance of general policies and purposes
where the exercise of reasoned judgment can produce different acceptable
results...[the] actions of correction employees, in circumstances such as those
here, are quasi-judicial in nature and deserving of absolute immunity
(Arteaga v State of New York, 72 NY2d 212, 219). Claimant's recourse was
to appeal the hearing examiner's determination, which he did, resulting in a
reversal and expungement of his record.
Based upon the foregoing, claimant has failed to set forth a claim for which
relief may be granted in this Court. Defendant's cross-motion is GRANTED and
the claim is DISMISSED. Claimant's motion is DENIED as moot.
The Court has considered the following documents in deciding this motion:
Affidavit of Lester Watts, in
Affirmation of Patricia M.
Memorandum of Law by Patricia M.
Letter dated January 27, 2004 from Lester